GENERAL TERMS AND CONDITIONS FOR CONSULTANCY
1.1 These General Terms and Conditions for Consultancy supplement contracts (hereinafter ‘Contract’) concerning consultancy and provision of information by TMC Turnaround Management Consult GmbH (hereinafter referred to as ‘TMC’) to the Client, including without limitation in connection with the preparation, planning and execution of business or technical decisions and plans. If and where individual terms of these General Terms and Conditions for Consultancy contradict what TMC has agreed with the Client in the individual case, the individual provisions shall take precedence over the relevant General Terms and Conditions for Consultancy.
1.2 If TMC has included these General Terms and Conditions for Consultancy in a contract with the Client, they shall also apply to all future contracts concerning consultancy services between the Client and TMC, even if TMC does not refer to these General Terms and Conditions for Consultancy in future contracts. The only instance when this shall not apply shall be if and where the Parties to the future contract agree on the application of new TMC General Terms and Conditions for Consultancy.
1.3 These TMC Terms and Conditions for Consultancy shall apply exclusively. The Client’s General Terms and Conditions shall only apply if this has been expressly agreed.
1.4 Cited Sections (§§) in these General Terms and Conditions are, in so far as they are not described otherwise in the text, those of these General Terms and Conditions for Consultancy.
§2 OBJECT OF THE CONTRACT, SERVICE PROVISION AND SCOPE OF SERVICES
2.1 The object of the contract is the consultancy services agreed and described in the contract, not the attainment of specific economic success.
2.2 TMC shall provide its services in accordance with the principles of prudent business and always with regard to the Client’s individual situation and needs. The Client is aware that every analysis of a company or market implies uncertainties.
2.3 TMC shall deploy well-qualified employees with the required technical knowledge and experience in fulfilling orders and shall monitor them. Where nothing else has been agreed, TMC may employ specialist sub-contractors in fulfilling orders, whereby TMC shall always remain directly obligated to the Client. Where nothing else has been agreed, TMC shall decide at its own discretion which employees or sub-contractors to deploy.
2.4 TMC shall not owe and shall not provide any legal or tax advice or auditing.
§3 CHANGES TO SERVICES
3.1 TMC shall take the Client’s change requests concerning the order into account, where this is possible within the scope of its operational capacities and consultancy offering and in so far as the execution of the change request is appropriate and reasonable.
3.2 TMC may implement small project changes without the Client’s prior consent, to the extent that these correspond to the Client’s assumed will, are of an urgent nature and the Client cannot be reached in time. TMC shall inform the Client of such project changes and their effects without undue delay.
3.3 Where a change request from the Client leads to an increase in TMC’s expenses or extends the project time frame, the Contracting Parties undertake to negotiate a corresponding appropriate adjustment to the Contract and remuneration. Where the Contracting Parties cannot agree on remuneration for the services, TMC’s remuneration shall increase in proportion to the additional time and costs.
3.4 If auditing the project change is associated with significant expense for TMC, TMC may request that a separate order be made for this purpose.
3.5 Clause 3.3 shall apply accordingly in the event of a project change as per § 3.2.
§4 COOPERATION OBLIGATIONS ON THE PART OF THE CLIENT
4.1 The project's success wholly depends on all those involved working closely together. The Client shall diligently provide TMC with ongoing support on project work. The Client shall provide TMC with comprehensive information on the companies which are the object of the Contract and on all matters which are significant for the project, as well as providing documents and information which are important or deemed necessary by TMC on an ongoing basis in a timely and complete manner.
4.2 The Client shall:» Answer all TMC’s questions completely, correctly and quickly to the best of its knowledge, where these are significant to TMC’s project work.» Inform TMC in a timely manner without any request being made of all circumstances which could be relevant to the project, even in borderline cases, including retroactive correction or updates to submitted documents.
4.3 Where an interim manager provided or chosen by TMC is appointed, Client must also fulfil the agreed cooperation obligations with respect to the interim manager.
4.4 The Client shall check the interim results, documents, discussion protocols etc. submitted by TMC without undue delay to determine whether the factual information they contain is correct and complete to the best of the Client’s knowledge. The Client shall inform TMC of any necessary or desired corrections or addenda in writing without undue delay.
4.5 Upon TMC’s request, the Client undertakes to provide TMC with a written assurance that the information submitted to TMC is complete and correct to the best of the Client’s knowledge before TMC presents the results.
4.6 The Client shall ensure that the company which is the object of consultancy according to the Contract fulfils all necessary and reasonable organisational and factual requirements for proper order fulfilment. Where required it shall provide TMC and its agents with appropriate on-site workspaces which allow TMC to work in an undisturbed and confidential manner (incl. desk, office equipment, PC, telephone and, if necessary, integration into the company’s internal communication system).4.7 If and where the Client fails to fulfil its cooperation obligation completely and in a timely manner as agreed with TMC despite the latter’s request, the following shall apply:a) The Client shall reimburse TMC’s resultant additional expenses (time, costs) at the general fee rates agreed between the Parties;b) In serious cases TMC shall have the right to extraordinary termination of the Contract after an appropriate notice period for fulfilment of the cooperation obligation has expired without success.Further legal rights and claims on the part of TMC shall remain unaffected.
§5 PROTECTION OF CONFIDENTIALITY BY TMC
5.1 TMC shall be obliged for 2 years from the conclusion of the Contract to keep all information designated as confidential by the Client, along with trade and company secrets,(hereinafter: ‘Confidential Information’) confidential, where this information has become known to TMC in connection with the order.
5.2 In so far as an exception is not made in § 5, TMC may not disclose confidential information and reports, expert opinions and written statements on the progress and events of its activities to third parties unless with the Client’s prior consent.
5.3 The obligation of confidentiality as per § 5.1 shall not apply to confidential information, if and wherea) they were already legally in TMC’s possession before disclosure and without being subject to a confidentiality obligation;b) they were legally disclosed to TMC by a third party after conclusion of the Contract;c) the information was published without TMC’s involvement or otherwise became generally known through no fault of TMC;d) TMC is obliged due to mandatory legal requirements or official orders to give the information to the authorities, judiciary or other third parties;e) the Client has agreed to TMC disclosing the information.
5.4 TMC is entitled to pass confidential information on to persons it employs to carry out the order, especially its employees and sub-contractors as well as persons who are sworn to professional secrecy, as long as TMC obliges these persons to confidentiality and data protection.
5.5 TMC is entitled to process personal data entrusted to it by the Client within the scope of the intended purpose, or to have them processed by third parties.
5.6 TMC may use the fact that it has or had a contractual relationship with the Client as well as its specific activity as a reference, especially in presentations, events or in its company prospectus.
§6 SERVICE HINDRANCES
6.1 In the event of force majeure and other unforeseeable, extraordinary and involuntary circumstances (e.g. in the event of unforeseen difficulties in procuring materials, operational disturbances, strike, lockout, lack of transportation, regulatory intervention, energy supply difficulties and the like) any service deadlines on the part of TMC shall be extended accordingly. This shall not apply if TMC failed to take precautionary, preventative or take-up measures. If the above circumstances make it impossible or unreasonable for TMC to deliver services, TMC shall be released from its obligation to deliver them.
6.2 TMC may only appeal to the above circumstances if TMC informs the Client without undue delay.
6.3 §§ 6.1 shall apply accordingly in the absence of a TMC employee who was supposed to work on the project, provided that their departure was not foreseeable when the contract was concluded and is not the fault of TMC. If this employee is prevented from carrying out the service on a permanent or long-term basis, TMC is entitled to deploy another employee with at least the same skills as a replacement.
6.4 Where service delays as per § 6.1 to § 6.3 become unreasonable for the Client, it may set TMC a deadline to take up and/or continue its activities according to the Contract and extraordinarily terminate the Contract as per § 13 if this deadline has passed fruitlessly. TMC’s claim to remuneration for services already provided shall remain unaffected by this.
6.5 Where TMC is responsible for hindrances to service, it shall only be liable as per § 12.
§7 FIDUCIARY DUTY AND GUARANTEE OF INDEPENDENCE
7.1 The Parties commit themselves to mutual loyalty. They shall inform each other immediately of any circumstances that may arise in the course of project execution that may affect its progress.
7.2 The Client shall be responsible for ensuring that its affiliated companies as well as its and their employees do not do anything which could put the independence of TMC employees at risk. In particular they must not directly or indirectly poach TMC’s employees or ex-employees within 24 months of ceasing cooperation with TMC.
7.3 For each instance where it violates the ban contained in § 7.2 the Client must pay a contractual penalty in the amount of 10,000 euros. In the event of an ongoing violation the contractual penalty shall be incurred anew for each month or partial month. TMC reserves the right to claim for additional damages or other rights (e.g. injunctive relief).
§8 USE OF RESULTS/PROTECTION OF INTELLECTUAL PROPERTY
8.1 The Client shall be responsible for ensuring that the reports, expert opinions, organisational plans, drafts, drawings, lists and calculations produced by TMC within the scope of the order are only used for the purpose agreed in the contract and are not processed, translated, reprinted, passed on or disseminated without TMC’s express written consent. The use of the consultancy services provided for companies affiliated with the Client shall require express written agreement.
8.2 Where results of the work are subject to copyright law, TMC shall remain the copyright holder. In such cases the Client shall receive irrevocable, exclusive and non-transferable usage rights to the results of the work limited only by § 8.1, clause 1 and otherwise unlimited in time and space.
§9 DISCLOSURE OF TMC’S PROFESSIONAL STATEMENTS
9.1 The disclosure of information and passing on of consultancy services made by TMC within the scope of or in connection with the order (hereinafter collectively ‘Consultancy Content’) (including e.g. reports, expert opinions, organisational plans, drafts, drawings, lists, calculations and the like) by the Client to a third party shall require TMC’s written consent, where agreement to disclosure to this third party cannot be derived from the content of the contract.
9.2 The use of TMC Consultancy Content by the Client for promotional purposes is not permitted; a violation shall entitle TMC to extraordinary termination of the contractual relationship and all other orders from the Client which have not yet been fully carried out. Further claims by TMC shall remain unaffected in this respect.
§10 FEE, ANCILLARY COSTS, MATURITY, DELAY
10.1 The amount and nature of the fee shall in principle be determined in individual contracts. Where no provision has been made, the following fee rates shallapply:» Partner 250 euros/hour,» Project head 200 euros/hour,» Senior adviser 175 euros/hour,» Adviser 150 euros/hour,» Other (research, assistance, presentation preparation) 80 euros/hour,rates are exclusive of statutory VAT and flat fees for ancillary costs as per § 10.3. The hourly rates shall apply both to working hours and journey times. You may request a more detailed time sheet if needed at any time.
10.2 Where the term of the contract exceeds 12 months and TMC is billing according to expenses, the fee rates shall increase by 3% at the start of each new year of the Contract after its conclusion.
10.3 Where not agreed otherwise, the ancillary costs shall be a flat 15% of net fee turnover. The ancillary costs shall include travel costs within Germany as well as costs for necessary access to research facilities (databases, fees for viewing files etc.), communication and office management. Fee for journey times is not included and shall be billed from the nearest TMC branch to the Client as per § 10.1. The agreed rental and use of electronic databases, specialised databases and/or other agreed external services are not included either. Ancillary costs shall be billed with the fee claims.
10.4 Agreed payments shall be payable as soon as they have been invoiced and before the start of service and shall be offset by TMC with the nearest consultancy services. If other payments have been agreed, TMC shall invoice these in a timely manner, such that there is no disruption to consultancy services.
10.5 Other fee invoices must be paid on receipt by the Client and within seven calendar days. If the maturity of an agreed fixed fee depends on the presentation of agreed results, it shall occur even if the Client fails to accept processed results on the agreed deadline (e.g. due to short-term termination of contract).
10.6 Statutory VAT must be added to all prices and shown separately in invoices.
10.7 Multiple Clients shall be liable as joint and several debtors.
10.8 The Client may only offset against TMC’s claims if its own claims are uncontested or have been made legally enforceable.
§11 DEFECTS, EXPIRY
Where TMC owes an analysis or an expert opinion or other defined work, the following shall also apply:
11.1 Where the services are defective, the customer has a right to rectification by TMC as per the statutory regulations.
11.2 If the rectification repeatedly fails, the Client may request a reduction in remuneration or rescission of the Contract. The Client may only request the rescission of the Contract if the service provided is of no interest to it due to the failure of rectification. For additional compensation claims § 12 shall apply.11.3 The Client’s above guarantee rights shall expire, with the exception of compensation claims, in 12 months from the legal start of the term of limitation.
12.1 TMC shall be liable to the Client, regardless of the legal reason, for damages caused by and within the responsibility of TMC, its legal representatives and agents as follows:
12.2 TMC shall be liable for § 12.1 for damages arising from injury to life, body or health.
12.3 TMC shall be liable as per § 12.1 for other intentional damage or damage caused by gross negligence. It shall only be liable for slight negligence in such cases where it has breached important contractual obligations and is then limited to reimbursement of contractually typical and foreseeable damages.
12.4 Any liability on the part of TMC is excluded in all other damage and liability cases not covered by the above liability provisions.
12.5 TMC shall not be liable for the unsuitable application or implementation by the Client of the recommendations given within the scope of services or in work documents.
12.6 Where TMC’s liability is excluded or limited according to this Contract, the same shall also apply to the personal liability of its legal representatives, employees and agents.
12.7 §§ 11 and 12 shall apply accordingly to any claims to compensation for fruitless expenditure (e.g. Section 284 BGB [German Civil Code]).
13.1 Where nothing else has been contractually agreed and TMC does not owe the production of a work within the meaning of § 11 (statutory regulations apply in this respect), the Contract may be terminated by either party with a notice period of 14 days at the end of the month. The right to extraordinary termination remains unaffected.
13.2 The following in particular may be considered as grounds for extraordinary termination:
• failure to agree on remuneration in the event of necessary significant changes to projects;
• in the event of delayed acceptance and payment delays on the part of the Client, where TMC has set an appropriate grace period for fulfilment by the Client without success;
• if the Client’s asset situation gets significantly worse or is at substantial risk, especially if the Client ceased payments or declares that it wishes to cease them, or if the Client has applied for insolvency or has opened insolvency proceedings or if such was rejected due to lack of funds.
13.3 In the event of an extraordinary termination by TMC due to contractually non-compliant action by the Client, the Client shall owe TMC compensation for all damages caused by the premature termination of the Contract, including lost profits.
13.4 Termination must be made in writing to be effective.
§14 RETENTION, STORAGE OF DOCUMENTS
14.1 Until its claims have been paid in full TMC has the right to retain documents transferred to it, the use of which is, however, contrary to good faith if the retention would cause the Client disproportionately high costs which are not justified by weighing up the interest of both Parties.
14.2 After its claims arising from the Contract have been paid, TMC must at the Client’s request return all documents which the Client (itself or via a third party) has provided to TMC for the purposes of fulfilling the order. This shall not apply to correspondence between the Parties or simple copies of the reports, organisational plans, drawings, lists, calculations etc. prepared within the scope of the order, if the Client has received the originals.
14.3 TMC’s obligation to store documents shall cease to apply six months after the end of the contractual relationship. Statutory storage obligations shall remain
§15 ADDITIONAL PROVISIONS
15.1 This Contract shall be exclusively subject to German law to the exclusion of UN sales law and conflict-of-law references to other legal ordinances.
15.2 The place of performance is TMC’s registered office. The place of jurisdiction for all disputes arising from or in connection with this Contract is the registered office of the TMC branch which concluded the Contract, as long as (i) all Clients are businesspeople, legal persons under public law or special assets under public law and do not share its place of jurisdiction, (ii) in all other cases only if the Client does not have a domestic residence.
15.3 The language of presentations, documents, expert opinions, analyses etc. shall be the German language.
15.4 Amendments or addenda to a contract named in § 1.1 as well as in the individual case of these General Terms and Conditions for Consultancy shall require the written form, as long as nothing else is set down here and a stricter form is not bindingly prescribed by law. The exchange of emails to disclosed email addresses shall be sufficient here for the fulfilment of the agreed written form requirement. This shall also apply to an amendment of this written form requirement.
15.5 The Client may not transfer rights arising from the contractual relationship with TMC unless with the latter’s prior written consent.
15.6 Should individual provisions of this Contract be or become partly or completely invalid or unenforceable, this shall not affect the remaining provisions of the Contract. In the place of the invalid or unenforceable provision, a valid or enforceable provision shall be considered agreed that objectively approaches as closely as possible the commercial intent of the invalid or unworkable provision. The same shall apply in the event of a loophole which needs filling in the Contract.
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