§ 1 General, Scope and Application
(1) The following General Terms and Conditions apply to all legal transactions between Johannes Ebermann - Cross Discipline Consultant, hereinafter referred to as "JE - CDC", and his contractual partner, hereinafter referred to as "client".
(2) Conflicting or supplementary terms and conditions, in particular the general terms and conditions of business of the client, shall not form part of the contract unless written consent (e-mail is sufficient) has been given by "JE - CDC".
(3) "JE - CDC" carries out consultations in accordance with these General Terms and Conditions (GTC). These terms and conditions are deemed to be accepted by the client on commissioning.
(4) The contracts concluded by "JE - CDC" are service contracts, unless expressly agreed otherwise. The object of the contract is therefore the provision of the agreed services, not the achievement of a specific result. In particular, "JE - CDC" does not owe a specific economic result. Statements and recommendations by "JE - CDC" prepare the entrepreneurial decision of the client. They can in no case replace the latter.
(5) "JE - CDC" is entitled to commission subcontractors. Consultancy services in legal and tax matters are neither promised nor provided by "JE - CDC" on the basis of the applicable regulations. These services are to be provided by the client himself.
(6) "JE - CDC" provides consultancy services on the basis of the data and information provided by the client or his agents. These are checked by "JE - CDC" for plausibility. The guarantee for their factual correctness and for their completeness lies solely with the client.
(7) the client will be notified in writing of any changes to these terms and conditions. They are deemed to be approved if the client does not object in writing. the client must send the objection to "JE - CDC" within four weeks of notification of the changes.
§ 2 Conclusion of Contract
(1) Quotations from "JE - CDC" are subject to change unless otherwise agreed in writing. In case of doubt, the offer or order confirmation from "JE - CDC" is decisive for the content of the contract. JE - CDC" does not owe any further quality of the services or work results.
(2) The contract comes into effect when the client accepts the general offer from "JE - CDC". The contract begins and ends on the specific and individually agreed date. The written form is required.
(3) "JE - CDC" is entitled to refuse a service contract without giving reasons if the necessary relationship of trust cannot be expected, if "JE - CDC" cannot or may not advise due to specialisation or for legal reasons, or if there are reasons which could bring "JE - CDC" into conflicts of conscience. In this case, the fee claim of "JE - CDC" for the services rendered up to the refusal of the consultation remains intact.
(4) All notices of termination, reminders and setting of deadlines as well as other contractual declarations by the client must be in text form to be effective.
§ 3 Performance and place of performance
(1) The Client shall specify the task. The fulfilment of the task is planned jointly on this basis. "JE - CDC" can, if necessary, submit a written concept/offer for this. Further details result from the concept/offer.
(2) Even insofar as the services are provided at the clients's premises, "JE - CDC" alone is authorised to issue instructions to its employees. The employees are not integrated into the client's business. the client can only give instructions to the project coordinator of "JE - CDC", not directly to the individual employees.
(3) the client bears the risk as to whether the services commissioned correspond to his wishes and needs. He must seek advice on questions of doubt in good time from employees of "JE - CDC" or from expert third parties.
(4) "JE - CDC" can make notes of the discussions to specify or change contractual circumstances, in particular the subject matter of the contract. the client will check the notes as soon as possible and inform "JE - CDC" of any necessary changes and additions.
(5) If the services cannot be provided for reasons for which "JE - CDC" is not responsible, the agreed times will nevertheless be invoiced, unless the client can prove that the resources concerned could be used elsewhere by "JE - CDC". Events of force majeure which make the service considerably more difficult or temporarily impossible, or obstructions due to a lack of cooperation by the client, entitle "JE - CDC" to postpone the fulfilment of its service by the duration of the obstruction and an appropriate start-up time. Industrial disputes and similar circumstances are equivalent to force majeure insofar as they are unforeseeable and serious. The parties shall notify each other immediately of the occurrence of such circumstances.
(6) Consultations shall take place by arrangement either by telephone or at a mutually agreed place after prior arrangement of an appointment. Unless otherwise agreed, Montilla (Spain) shall be deemed the place of performance.
§ 4 Remuneration, payment, reservation
(1) The consultancy and services provided by "JE - CDC" shall be remunerated according to time spent. Invoicing according to time and effort shall be based on a list of activities enclosed with the invoice. The cost of materials shall be remunerated separately. Waiting times of "JE - CDC" employees for which the client is responsible shall be remunerated as working times. If the client does not object in writing to the stipulations in the list within two weeks, these shall be deemed to have been accepted.
(2) Travel times, travel costs, accommodation costs & expenses are charged according to expenditure and depending on the place of employment of the "JE - CDC" employee. Travel times and costs arise on journeys between the employee's place of employment and the respective place of employment of the client or between different places of employment of the client.
(3) Remuneration for the performance of consultancy and services shall be based on a fixed price agreed in the contract per person-day or hourly rate. A person-day comprises 8 hours including breaks. Additional time, surcharges for work on weekends and public holidays and incidental costs shall be remunerated separately.
(4) Unless expressly stated otherwise, the total prices and times quoted in offers from "JE - CDC" are non-binding estimates of the costs and time to be expected after professional calculation.
(5) The services provided by "JE - CDC" will be duly invoiced to the client on a monthly basis and/or at the latest on completion of the services. "JE - CDC" can demand partial payments or full advance payments if no business relationship has yet been established with the client, if the delivery is to be made abroad or if the client is based abroad, or if there are reasons to doubt the punctual payment by the client.
(6) The prices are net prices plus the applicable statutory value added tax. No discount shall be granted.
(7) Invoices are due for immediate payment without deduction within 10 days of receipt by the client. The statutory provisions on default shall apply.
(8) "JE - CDC" retains ownership and rights (§ 8) to the contractual items until full settlement of its claims arising from the contract. The client must inform "JE - CDC" immediately in writing of any access by third parties to the reserved goods and inform the third party of the rights of "JE - CDC".
§ 5 Time of performance, duration of contract and termination
(1) The duration of the contract is determined by the stipulations in the respective contract with "JE - CDC".
(2) In addition to these individual contractual stipulations, "JE - CDC" is entitled to extraordinary termination of the contractual relationship after setting a deadline in writing with the threat of termination, if
- the contracting authority is in arrears with one or more instalment payments for more than 14 days.
- the client does not fulfil his obligations to cooperate according to § 3 of these contractual conditions.
(3) In the event of extraordinary termination of the contract by "JE - CDC", "JE - CDC" retains the claim to the total contractual fee, but with deduction of saved expenses.
(4) Insofar as the client does not prove a higher proportion of saved expenses in individual cases, this is agreed as 40% of the fee for the services not yet provided by "JE - CDC".
(5) In the event of default in payment by the client and in the event of extraordinary termination of the contractual relationship by "JE - CDC" due to default in payment by the client, "JE - CDC" has a right of retention to all documents of the client in the possession of "JE - CDC" at that time as well as documents prepared by "JE - CDC" for the client until full payment of the remuneration claims of "JE - CDC".
(6) Deadlines are non-binding unless they have been expressly agreed as binding in writing. The obligation of "JE - CDC" to provide the service only begins with the acceptance of the concept or the confirmation of the offer by the client.
(7) Working days are the weekdays from Monday to Friday (08:00 to 19:00 CET) excluding public holidays in the Federal State of Saxony or at the respective project location of the client at which work is performed.
§ 6 Impediments to performance and change request procedure
(1) If the contractual provision of the service is not successful in essential parts for reasons for which "JE - CDC" is responsible, even within a reasonable period of grace to be expressly set by the ordering party, the ordering party is entitled to terminate the contract without notice. In this case "JE - CDC" is entitled to remuneration for the services provided on the basis of the contract until the termination takes effect.
(2) In the event of a proposed change by the client, "JE - CDC" will inform the client within ten working days whether the change is possible and what effects it will have on the contract, in particular taking into account the timeframe and remuneration. the client must then inform "JE - CDC" in writing within five working days whether he wishes to maintain his proposed amendment on these terms or whether he wishes to continue the contract on the old terms. If the examination of a proposed amendment represents a not inconsiderable effort, "JE - CDC" can invoice the effort caused by the examination separately.
(3) In the case of a proposed amendment by "JE - CDC", the client will inform "JE - CDC" in writing within 10 working days whether he agrees to the amendment.
§ 7 Copyright
(1) "JE - CDC" grants the contracting party the non-exclusive, permanent and non-transferable right to use the embodied consulting and service results provided within the framework of the contract, insofar as this results from the purpose and area of application of the contract and insofar as the contracting parties have not agreed otherwise therein.
(2) Any non-contractual use of these services, in particular their publication, requires the prior written consent of "JE - CDC". This also applies if the service provided should not be the subject of special legal rights, in particular copyright. In the event of a breach of these provisions, "JE - CDC" is entitled to an additional fee in an amount appropriate to the circumstances.
§ 8 Defects of quality and title, qualitative and other defects in performance
(1) The statutory rights to defects and warranty apply with the following exception: The warranty is reduced to 1 year. The reduction of the limitation period does not apply in the case of intent or gross negligence by "JE - CDC", fraudulent concealment of the defect, personal injury or defects of title.
(2) If "JE - CDC" provides services for fault finding or rectification without being obliged to do so, "JE - CDC" can invoice the additional expenditure in accordance with § 6. This applies in particular if a reported material defect cannot be proven or cannot be attributed to "JE - CDC". In particular, the additional expenditure incurred by "JE - CDC" in the rectification of defects due to the fact that the client has not properly fulfilled his obligations to cooperate, has used software or work results improperly or has not made use of services recommended by "JE - CDC" is also to be remunerated.
(3) If "JE - CDC" does not provide services or does not provide them properly outside the area of liability for material defects and defects of title, or if "JE - CDC" commits any other breach of duty, the client must always notify "JE - CDC" of this in writing and grant "JE - CDC" a period of grace within which "JE - CDC" is given the opportunity to provide the service properly or to remedy the situation in some other way.
§ 9 Liability
(1) Claims for damages by the client are excluded. Excluded from this are claims for damages by the client arising from injury to life, limb or health from the breach of essential contractual obligations (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duty by "JE - CDC", its legal representatives or vicarious agents. Essential contractual obligations are those whose fulfilment is necessary to achieve the objective of the contract.
(2) In the event of a breach of essential contractual obligations, "JE - CDC" is only liable for the foreseeable damage typical for the contract if this was caused by simple negligence, unless it is a matter of claims for damages by the client arising from injury to life, body or health.
(3) The restrictions also apply in favour of the legal representatives and vicarious agents of "JE - CDC" if claims are asserted directly against them.
§ 10 Confidentiality and data protection
(1) The contracting partners undertake to treat the contents of the contracts concluded between them and all knowledge of confidential information and trade secrets of the other contracting partner obtained in the course of the fulfilment of the order as confidential for an unlimited period of time and to use this information only in the course of the fulfilment of the order.
(2) The client agrees to the storage of personal data within the framework of the business relationship with "JE - CDC", in compliance with the data protection laws. Data will not be passed on to third parties unless this is necessary for the execution of the contract or the client has given his consent.
(3) Insofar as the client transfers data from third parties, the client assures that he has obtained consent from the third party and releases "JE - CDC" from any claims in this respect.
(4) The rights of the client or the person affected by the data processing result in particular from the following standards of the GDPR:
- Article 7 (3) - Right to revoke consent under data protection law.
- Article 15 - Right of the data subject to information, confirmation and provision of a copy of personal data
- Article 16 - Right of rectification
- Article 17 - Right to erasure ("right to be forgotten")
- Article 18 - Right to restriction of processing
- Article 20 - Right to data portability
- Article 21 - Right to object
- Article 22 - right not to be subject to a decision based solely on automated processing, including profiling
- Article 77 - Right to lodge a complaint with a supervisory authority
(5) In order to exercise the rights, the client or the data subject is requested to contact "JE - CDC" by e-mail or, in the event of a complaint, the competent supervisory authority.
§ 11 Duty of cooperation of the client
(1) the client shall agree the subject matter of the contract in detail (including the type and scope of the service owed as well as the duration of the service provision and deadlines) with "JE - CDC" and support "JE - CDC" in the provision of the consultancy and services to an appropriate extent free of charge. In particular, he shall make the necessary information and documents available to "JE - CDC" in full and in good time and ensure that "JE - CDC" has access to software relevant to the fulfilment of the order and to the IT systems by means of remote data transmission.
(2) The client shall name in writing a contact person with the necessary expertise for "JE - CDC" and an address and e-mail address at which the contact person can be reached. The contact person must be in a position to make the necessary decisions for the client or to bring them about without delay. The contact person shall ensure good cooperation with the contact person at the "JE - CDC". the client's employees whose activities are necessary must be released from other activities to a reasonable extent.
(3) At the request of "JE - CDC", the client must confirm in writing the correctness and completeness of the documents submitted by him as well as his information and oral statements.
(4) the client alone is responsible for testing and evaluating the suitability and performance of third-party systems and/or apps, even if these have been recommended by "JE - CDC". This does not apply if the testing and evaluation is owed by "JE - CDC" according to the contract; in this respect "JE - CDC" remains responsible for the correctness of the testing of the third-party systems with regard to the status in which they were at the time of the testing by "JE - CDC".
(5) the client shall grant "JE - CDC" access to its buildings and premises as required and shall provide the necessary working environment for the provision of the contractual services.
(6) the client shall take appropriate precautions in the event that the work results are subject to disruptions (e.g. through data backup, fault diagnosis, regular checking of the results). In the absence of an express written indication in individual cases, the employees of "JE - CDC" can always assume that all data with which they may come into contact are backed up.
(7) Further obligations to cooperate on the part of the client can be agreed in the respective contract.
(8) In the event of breaches of the client's duty to cooperate, any performance deadlines to be met by "JE - CDC" will be extended accordingly. In addition, "JE - CDC" is released from its obligation to perform insofar as, as a result of the breach of the obligation to cooperate and/or delays caused by this, originally planned resources (funds, personnel) are no longer available to it. Additional expenditure incurred by "JE - CDC" as a result of the breach of the duty to cooperate must be reimbursed by the client to an appropriate amount.
§ 12 Final Provisions
(1) the client is not entitled to assign his claims arising from the contract.
(2) For the purpose of mutual process optimisation, "JE - CDC" is entitled to send invoices to the client also in electronic form. the client agrees to this.
(3) The law of the Kingdom of Spain applies. The exclusive place of jurisdiction for all disputes arising from and in connection with this contract is Montilla (Spain), insofar as the client is a merchant, a legal entity under public law or a special fund under public law.
(4) Should individual provisions of the above terms and conditions - irrespective of the legal grounds - be or become invalid, this shall not affect the validity of the remaining provisions of this contract. Rather, both contracting parties irrevocably undertake already now to agree on a provision in place of the possibly invalid provision which corresponds to the presumed intention of the parties at the time of conclusion of the contract.