1. general principles / scope of application
1.1 These General Terms and Conditions shall apply exclusively to all legal transactions between Mark Haacke Training & Consulting GmbH (“User”) and its contractual partners. The version valid at the time of the conclusion of the contract shall apply in each case. Conflicting General Terms and Conditions of the Contractual Partner shall be invalid unless they are expressly accepted by the User in writing.
1.2 These General Terms and Conditions shall also apply to all future contractual relationships, thus even if not expressly referred to in additional contracts.
1.3 In the event that individual provisions of these General Terms and Conditions are 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 User 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 User itself. No direct contractual relationship whatsoever shall arise between the third party and the contracting party.
2.3 The Contractual Partner undertakes not to enter into any business relationship whatsoever with persons or companies used by the User for the performance of its obligations arising from the mutual agreement during and until the expiry of three years after the termination of this contractual relationship. In particular, the Contractual Partner shall not commission these persons and companies with such or similar consulting services that are also offered by the User.
2.4 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.
2.5 The scope and content of the order shall be determined by the specifications provided by the contracting party, which shall contain all relevant details. The contracting party is obliged to provide all information relevant to the processing if this information is accessible to the contracting party itself.
The scope of the order shall be described by the User in the form of an offer specifying the essential contents and scope. The contracting party shall be provided with a breakdown of the relevant individual items. The contractual partner is obliged to check the scope of the offer and confirm it in writing.
Furthermore, the contractual partner 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 user has access to the system.
3. duty of the contracting party to provide information / declaration of completeness
3.1 The Contractual Partner 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.
3.2 The Contractual Partner shall ensure that all documents necessary for the performance and execution of the order are submitted to the User in a timely manner, even without the User’s special request, and that the User is informed of all processes and circumstances that are of importance for the execution of the order. This also applies to all documents, processes and circumstances which only become known during the activity of the user.
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 that are suitable to prevent the independence of the commissioned third parties and employees of the User from being jeopardized. The contracting party shall refrain from making offers to these persons for employment or the assumption of its own orders.
5. reporting / reporting obligation
5.1 The User undertakes to regularly report to the Contractual Partner on its order-related work, that of its employees and, if applicable, that of commissioned third parties in accordance with the progress of the work.
5.2 The contracting party shall receive the final report within a reasonable period of time, i.e. two to four weeks after completion of the order, depending on the type of order.
5.3 The User shall be free from instructions in the production of the agreed work and shall act at its own discretion and under 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 User and its employees and commissioned third parties (in particular offers, reports, analyses, expert opinions, organizational plans, programs, performance descriptions, drafts, calculations, drawings, data carriers, etc.) shall remain with the User. They may be used by the contractual partner during and after termination of the contractual relationship exclusively for purposes covered by the contract. In this respect, the Contractual Partner is not entitled to reproduce and/or distribute the work(s) without the express consent of the User, unless the purpose of the contract provides for this.
6.2 If the contractual partner uses the work results of the user in combination with work results of other parties involved to create an overall work result, for example vis-à-vis a third contractual party, the contractual partner 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.
If the Contractual Partner passes on the User’s work results unchanged, the User shall be notified of the recipient of the work results. The work result may not be changed by the contractual partner in this case, neither in terms of content nor form.
6.3 The Contractual Partner’s breach of these provisions shall entitle the User to immediately terminate the contractual relationship prematurely and to assert other statutory claims, in particular for injunctive relief and/or damages.
7. warranty
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 contracting party shall become statute-barred within one year from the end of the year in which the claim arose and the contracting party obtains knowledge of the circumstances giving rise to the claim and of the person of the debtor or fails to obtain such knowledge due to gross negligence.
8. liability / compensation
8.1 The User shall only be liable for damage that is demonstrably attributable to the User’s work results.
8.2 The User shall only be liable for slightly negligent breaches of duty if these are essential duties arising from the contractual relationship (cardinal duties) or such duties whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner can and may regularly rely. This liability is limited to the typical damage foreseeable at the time the terms and conditions become effective. The User shall be liable for personal injury and for damage caused by gross negligence or wilful misconduct in accordance with the statutory provisions. This shall also apply mutatis mutandis to damage caused by third parties engaged by the user.
8.3 The contracting party’s claims for damages shall become time-barred within one year from the end of the year in which the claim arose and the contracting party obtained knowledge of the circumstances giving rise to the claim and the person of the debtor or failed to obtain such knowledge through gross negligence. Excluded from this are claims based on injury to life, body or health as well as claims based on grossly negligent or intentional conduct of the user or his vicarious agents.
8.4 If the User performs the work with the assistance of third parties and warranty and/or liability claims arise against these third parties in this context, the User shall assign these claims to the Contractual Partner. In this case, the Contractual Partner shall seek satisfaction from these third parties as a matter of priority and shall only be entitled to demand satisfaction from the User after the unsuccessful expiry of a reasonable deadline set by the Contractual Partner.
9. secrecy / data protection
9.1 The contracting parties undertake to maintain absolute silence about all business matters coming to their knowledge, in particular business and trade secrets as well as any information they receive about the nature, scope of operation and practical activities of the other contracting party.
9.2 Furthermore, the User undertakes to maintain confidentiality vis-à-vis third parties regarding the entire content of the Work as well as all information and circumstances received in connection with the creation of the Work, in particular also regarding the data of clients of the Contractual Partner.
9.3 The User shall be released from the duty of confidentiality with respect to any assistants and representatives of which it makes use. 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 User shall be entitled to process personal data entrusted to it within the scope of the purpose of the contractual relationship. The Contractual Partner warrants to the User that all measures required by law have been taken for this purpose.
10. fee
10.1 Upon completion of the agreed work, the User shall receive a fee in accordance with the agreement between the Contractual Partner and the User. This fee is payable within 30 days from the date of invoice, unless otherwise stated on the invoice.
10.2. The User 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 User. Unless otherwise agreed, the invoice must be paid within 7 days.
10.3 The User shall in each case issue an invoice entitling to input tax deduction with all legally required features.
10.4 Any cash outlays, expenses, travel costs, etc. incurred shall be additionally reimbursed by the contractual partner against invoicing by the user.
10.5 If the agreed work is not performed for reasons on the part of the contractual partner or due to a justified premature termination of the contractual relationship by the User, the User shall retain the claim to payment of the entire agreed fee less saved expenses as well as less what the User acquires through other use of its labor or maliciously refrains from acquiring.
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 saved expenses are agreed as a lump sum of 40 percent of the fee for those services which the User has not yet provided by the date of termination of the contractual relationship. The parties shall be entitled to prove that the expenses actually saved or the earnings were higher or lower as a result of the labor being used elsewhere or possibly but maliciously omitted.
10.6 Unless otherwise agreed, the following provisions shall apply in the event of a shortfall of the agreed order quota:
Any discount granted on the daily/hourly rate shall not apply if the project is completed before 75% of the agreed order quota is exhausted.
If the project is completed after at least 75% but less than 90% of the agreed order quota has been utilized, the discount granted shall be reduced accordingly by the proportion by which the agreed order quota has been undercut.
If the project is terminated after at least 90% of the agreed quota has been used up, the discount granted shall apply unchanged.
Deviations from this provision require express agreement.
10.7 The User may refuse further performance with respect to the same order and any other existing orders with the Contractual Partner 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 User is entitled to send invoices to the Contractual Partner in electronic form. The Contractual Partner agrees to the sending of invoices in electronic form by the User.
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 at any time for good cause by either party 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 whom insolvency proceedings have not been opened and the contracting party, at the request of the other party, neither makes advance payments nor provides suitable security prior to performance by the other party and the reduced creditworthiness was not known to the other 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 user’s professional establishment. The court at the user’s place of business shall have jurisdiction over any disputes.
13.3 Insofar as work results are handed over in multilingual copies, the German version of the respective work results shall always be authoritative, in particular in the event of differences and questions of interpretation.
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.