GENERAL TERMS AND CONDITIONS FOR CONSULTANCY
§1 SCOPE OF APPLICATION
1.1 These General Terms and Conditions of Consultancy supplement contracts (hereinafter referred to as the "Contract"), the subject matter of which is the provision of advice and information by CVM Capital Value Management GmbH (hereinafter referred to as "CVM") to the client, in particular, but not exclusively, in connection with the preparation, planning and implementation of business or technical decisions and projects. If and to the extent that individual provisions of these General Terms and Conditions of Consultancy contradict what CVM has agreed individually with the client, the individual agreements shall take precedence over the relevant General Terms and Conditions of Consultancy.
1.2 If CVM has once included these General Terms and Conditions of Consultancy in a contract with the client, they shall also apply to all future contracts for consultancy services between the client and CVM, even if CVM does not refer to these General Terms and Conditions of Consultancy again in future contracts. This shall only not apply if and insofar as the parties agree on the validity of new General Terms and Conditions of Consultancy of CVM for the future contract.
1.3 CVM's General Terms and Conditions of Consultancy apply exclusively. The client's general terms and conditions of business shall only apply if this has been expressly agreed in writing.
1.4 Quoted §§ (paragraphs) in these Terms and Conditions of Contract are, insofar as they are not otherwise designated in the text, such of these General Terms and Conditions of Consultancy.
§2 SUBJECT MATTER OF THE CONTRACT, PERFORMANCE AND SCOPE OF SERVICES
2.1 The object of the contract is the agreed consultancy work specified in the contract, not the achievement of a specific economic success.
2.2 CVM shall provide its services with the diligence of a prudent businessman and always in relation to the individual situation and needs of the client. The client is aware that every analysis of a company or market also implies imponderables.
2.3 CVM uses well-trained employees who have the necessary expertise and experience for assignments and supervises and controls them. Unless otherwise agreed, CVM may use expert subcontractors for the execution of the order, whereby CVM shall always remain directly obliged to the client. Unless otherwise agreed, CVM shall decide at its own discretion which employees or subcontractors are to be used.
2.4 CVM does not owe and does not provide legal or tax advice or auditing services.
§3 CHANGES IN PERFORMANCE
3.1 CVM shall take into account the client's requests for changes to the order, insofar as this is possible within the framework of its operational capacities and its consultancy services and insofar as the implementation of the request for change is appropriate and reasonable for CVM.
3.2 CVM can carry out minor project changes without the prior consent of the client, provided that these correspond to the presumed will of the client, are urgent and the client cannot be reached in time. CVM will inform the client immediately of such project changes and their effects.
3.3 Insofar as CVM's expenditure is increased or the time frame of the project is extended as a result of a change request from the client, the contractual partners undertake to negotiate a corresponding appropriate adjustment to the contract and the remuneration. If the contractual partners cannot agree on remuneration for the services, the remuneration to which CVM is entitled shall, in case of doubt, increase in accordance with the additional time and expense.
3.4 If the examination of the project change involves a considerable amount of work for CVM, CVM can demand the conclusion of a separate contract for this purpose.
3.5 Section 3.3 shall apply accordingly in the event of a project change in accordance with § 3.2.
§4 OBLIGATIONS OF THE CLIENT TO COOPERATE
4.1 The success of the project requires close cooperation between the parties. The Client shall support CVM in the project work to the best of its ability on an ongoing basis. The client shall inform CVM comprehensively about the companies that are the subject of the order and about all aspects that are essential to the project, and shall provide CVM with important documents and information, or documents and information that CVM deems necessary, in a timely and complete manner.
4.2 The client shall:
» provide CVM with complete, accurate and prompt answers to all questions to the best of its knowledge which form an essential basis for CVM's work on the Project.
» inform CVM without being asked and in good time - also in cases of doubt - of all circumstances which may be of significance for the project, including the subsequently initiated correction or updating of documents which have been handed over.
4.3 In the event of the appointment of an interim manager provided or arranged by CVM, the client's agreed duties of cooperation must also be fulfilled towards the interim manager.
4.4 The client shall immediately check interim results, documents, minutes of meetings etc. submitted by CVM to ensure that the factual information contained therein is correct and complete to its knowledge. The client shall inform CVM immediately in text form of any necessary or desired corrections or additions.
4.5 The client undertakes to assure CVM in writing of the completeness and correctness of the information provided to CVM at CVM's request prior to a presentation of the results by CVM to its knowledge (declaration of completeness).
4.6 At the request of CVM, the client shall create the necessary and reasonable organisational, legal and factual conditions in the company which is the subject of the contractual consultation and in particular bring about the declarations required for § 5.5. If required, the client shall provide CVM and its vicarious agents with suitable workplaces on site, which permit undisturbed work and the maintenance of confidentiality (including a desk, office equipment, PC, telephone and, if necessary, integration into the company's internal communication system).
4.7 If and insofar as the client does not fulfil his obligations to cooperate agreed with CVM, or does not fulfil them completely or in good time, despite being requested to do so by CVM, the following shall apply:
a) Additional expenditure (time, costs) incurred by CVM as a result of this shall be reimbursed by the client at the general fee rates agreed between the parties;
b) In serious cases, CVM has the right to terminate the contract extraordinarily after the unsuccessful expiry of a reasonable period of time for the fulfilment of the obligation to cooperate.
Further legal rights and claims of CVM remain unaffected.
§5 PRESERVATION OF CONFIDENTIALITY BY CVM
5.1 CVM is obliged for a period of 2 years from the time of the conclusion of the contract to maintain confidentiality with regard to all information designated as confidential or business and trade secrets of the client (hereinafter referred to as "confidential information") which it becomes aware of in connection with an order.
5.2 Unless an exception is regulated in this § 5, CVM may only hand over confidential information and reports, expert opinions and written statements on the course and results of its activities to third parties with the prior consent of the client.
5.3 The duty of confidentiality in accordance with § 5.1 does not apply to confidential information if and insofar as
a) such information was already lawfully in the possession of CVM prior to disclosure and without any obligation to maintain secrecy
b) such information was lawfully transmitted to CVM by a third party without a confidentiality obligation after the conclusion of the agreement;
c) these CVM have been published without the intervention of CVM or have otherwise become generally known through no fault of CVM;
d) CVM is obliged to provide information to authorities, the judiciary or other third parties due to mandatory legal provisions or official orders;
e) the client has agreed to CVM passing on the information.
5.4 CVM is entitled to disclose confidential information to the persons employed by it to carry out the order, in particular its employees and subcontractors as well as persons professionally bound to secrecy, provided that CVM undertakes to bind these persons to secrecy and data protection.
5.5 CVM is authorised to process personal data entrusted to it by the client and its employees (e.g. details of name, address, date of birth, marital status, religious denomination, status of disability, length of service, salary, membership of works council, etc.) and financing partners, suppliers, customers, consultants and other persons or companies used by the client (e.g. address, telephone/fax number, e-mail address, etc.) within the scope of the intended purpose or to have such data processed by third parties.
5.6 CVM may use the fact that a contractual relationship exists or has existed between the client and itself as well as its specific activities as a reference, in particular within presentations, events or in its company brochure.
§6 IMPEDIMENTS TO PERFORMANCE
6.1 In the event of force majeure and other unforeseeable, extraordinary circumstances for which CVM is not responsible (e.g. in the event of unforeseeable difficulties in the procurement of materials, operational disruptions, strikes, lock-outs, lack of means of transport, interventions by the authorities, difficulties in the supply of energy and similar), any deadlines for performance on the part of CVM shall be extended to a reasonable extent. This does not apply if CVM is responsible for the acceptance, precautionary or preventive measures. If the aforementioned circumstances make it impossible or unreasonable for CVM to perform, CVM will be released from its obligation to perform.
6.2 CVM can only invoke the aforementioned circumstances if CVM informs the client of them without delay.
6.3 §6.1 shall apply accordingly insofar as an employee of CVM who is contractually designated for the project - unforeseeable at the time of the conclusion of the contract and for which CVM is not responsible - is absent. Insofar as this employee is permanently or for a longer period of time prevented from providing the service, CVM shall be entitled to provide an employee with at least the same skills as a replacement.
6.4 Insofar as delays in performance in accordance with § 6.1 to § 6.3 become unreasonable for the client, the client can set CVM a reasonable deadline for the commencement and/or continuation of the contractual activities and, after the fruitless expiry of this deadline, terminate the contract extraordinarily in accordance with § 13. CVM's claim to remuneration for services already provided remains unaffected by this.
6.5 Insofar as CVM is responsible for impediments to performance, it shall only be liable in accordance with § 12.
§7 DUTY OF LOYALTY AND GUARANTEE OF INDEPENDENCE
7.1 The parties undertake to be loyal to each other. They shall inform each other without delay of all circumstances which arise in the course of the execution of the project and which may influence the processing.
7.2 The client shall ensure that its affiliated companies and its and their employees refrain from doing anything that could jeopardise the independence of CVM's employees. In particular, the direct or indirect enticement of CVM's employees or former employees must be refrained from within 24 months of the end of the cooperation with CVM.
7.3 For each case of violation of the prohibition in accordance with § 7.2, the client shall pay a contractual penalty of EUR 10,000. In the event of a continuous violation, the contractual penalty shall be deemed to be newly forfeited for each month commenced.
CVM reserves the right to assert further damages or other rights (e.g. injunctive relief).
§8 USE OF THE RESULTS / PROTECTION OF INTELLECTUAL PROPERTY
8.1 The client shall ensure that the reports, expert opinions, organisational plans, drafts, drawings, lists and calculations produced by CVM within the scope of the contract are only used for the contractually agreed purposes and are not edited, translated, reprinted, passed on or disseminated without the express written consent of CVM in the individual case. The use of the consulting services provided for companies associated with the client requires an express written agreement.
8.2 Insofar as work results are copyrightable, CVM remains the copyright holder. In these cases, the Client shall receive the irrevocable, exclusive and non-transferable right of use to the work results, which is only restricted by § 8.1, Sentence 1, and is otherwise unrestricted in terms of time and place.
§9 passing on of cvm's professional statements
9.1 The disclosure by the client to a third party of information and consultancy services provided by CVM within the scope of or in connection with the order (hereinafter collectively referred to as "Consultancy Content") (including, for example, reports, expert opinions, organisational plans, drafts, drawings, lists, calculations, etc.) shall require the written consent of CVM, insofar as the consent to the disclosure to this third party does not already result from the content of the contract.
9.2 The use of CVM's consulting content by the client for advertising purposes is not permitted; an infringement entitles CVM to extraordinary termination of the contractual relationship and all other orders from the client that have not yet been fully executed. Further claims by CVM remain unaffected in this respect.
§10 FEE, ADDITIONAL COSTS, DUE DATE, DEFAULT
10.1 The amount and type of fee shall in principle be regulated in individual contracts. In the event that no arrangement has been made, the following fee rates shall apply:
» GF 400,-- Euro / hour,
» Partner 312,50 Euro / hour,
» Principal 250,-- Euro / hour,
» Project Manager 225,-- Euro / hour,
» Senior Consultant 200,-- Euro / hour,
» Consultant 175,-- Euro / hour,
» Other (research, assistance, presentation preparation) 100,-- Euro / hour,
in each case plus statutory VAT and the flat rate for incidental expenses pursuant to § 10.3. The hourly rates apply to both working and travelling time. A detailed time sheet can be requested at short notice at any time if required.
10.2 Insofar as the term of the contract extends beyond a period of 12 months and CVM invoices on a time and material basis, the fee rates shall increase by 3% at the beginning of each new contractual year after the conclusion of the contract.
10.3 Unless otherwise agreed, the ancillary costs shall amount to a flat rate of 15% of the net fee turnover. The incidental costs include travel expenses in Germany as well as costs for the necessary access to research facilities (databases, fees for file inspections, etc.), communication and office management. Fees for travel time are not included and shall be invoiced in accordance with § 10.1 from the CVM branch nearest to the client. Furthermore, the agreed rental and use of electronic data rooms, specialised databases and/or other agreed external services are not included. The ancillary costs shall be invoiced together with the fees in each case.
10.4 Agreed advance payments shall be due immediately upon invoicing and before the commencement of services and shall be offset by CVM against the consulting services that are closest in time. Insofar as further advance payments have been agreed, CVM shall invoice these in good time in each case so that an interruption of consultancy services is avoided.
10.5 Other fee invoices are due on receipt by the client and must be paid within 7 calendar days. If the due date of an agreed fixed fee depends on the presentation of agreed results, the due date shall also occur if the Client no longer accepts results already prepared (e.g. as a result of termination of the contract at short notice) on the agreed date.
10.6 The statutory value added tax shall be added to all price quotations and shown separately in the invoices.
10.7 Several clients shall be jointly and severally liable.
10.8 A set-off by the client against claims of CVM is only permissible with undisputed or legally established claims.
§11 DEFECTS, LIMITATION PERIOD
Insofar as CVM owes an analysis or an expert opinion or any other defined work, the following shall apply in addition:
11.1 Insofar as the services are defective, the customer shall have a right to rectification by CVM in accordance with the statutory provisions.
11.2 In the event of repeated failure of the rectification of defects, the client may also demand a reduction in the remuneration or cancellation of the contract. The client can only demand the cancellation of the contract if the service provided is of no interest to it due to the failure of the rectification. Section 12 shall apply to any further claims for damages.
11.3 The aforementioned warranty rights of the Principal shall become statute-barred, with the exception of claims for damages, 12 months after the statutory commencement of the limitation period.
§12 LIABILITY, LIMITATION PERIOD
12.1 CVM is liable to the client, irrespective of the legal grounds, for the damages caused by CVM, its legal representatives and vicarious agents and for which CVM is responsible, as follows:
12.2 CVM shall be liable in accordance with § 12.1 for damages arising from injury to life, limb or health.
12.3 CVM is liable in accordance with § 12.1 for other damages caused intentionally or through gross negligence. Liability for slight negligence exists in these cases only in the event of a breach of essential contractual obligations and is then limited to compensation for the foreseeable damage typical of the contract.
12.4 In all other cases of damage and liability not covered by the above liability regulations, CVM's liability is excluded.
12.5 CVM is not liable for the improper application or implementation on the part of the client of the recommendations given within the scope of the services or in the working documents of CVM.
12.6 Insofar as the liability of CVM is excluded or limited under this contract, the same also applies to the personal liability of its legal representatives, employees and vicarious agents.
12.7 §§ 11 and 12 shall apply accordingly to any claims for compensation for futile expenditure (e.g. § 284 BGB).
13.1 Insofar as nothing to the contrary has been contractually agreed and insofar as CVM does not owe the creation of a work within the meaning of § 11 (in this respect, the statutory regulations shall apply), the contract may be terminated by either party with 14 days' notice to the end of the month. The right to extraordinary termination shall remain unaffected.
13.2 The following in particular shall be considered as extraordinary grounds for termination
- in the event of a lack of agreement on the remuneration in the event of necessary substantial changes to the project;
- in the event of default in acceptance and delays in payment on the part of the client, insofar as CVM has unsuccessfully set a reasonable deadline for fulfilment by the client;
- if a significant deterioration or a significant threat to the financial circumstances of the client occurs, in particular if the client suspends payments or declares its intention to suspend them, or if the client has filed for insolvency or if insolvency proceedings have been opened or rejected for lack of assets.
13.3 In the event of an extraordinary termination by CVM, which is due to a breach of contract by the client, the client shall owe CVM compensation for all damages incurred as a result of the premature termination of the contract, including the loss of profit.
13.4 The termination must be in writing in order to be effective.
§14. RETENTION, STORAGE OF DOCUMENTS
14.1 CVM shall have a right of retention to the documents made available to it until its claims have been settled in full; however, the exercise of this right of retention shall be contrary to good faith if the retention would cause disproportionately high damage to the client, which would be unjustifiable when both interests are weighed against each other.
14.2 After the settlement of its claims arising from the contract, CVM must, at the request of the client, hand over all documents which the client has handed over to it (either itself or via a third party) on the occasion of the execution of the order. This does not apply to correspondence between the parties and to simple copies of reports, organisational plans, drawings, lists, calculations, etc. produced as part of the order, provided that the client has received the originals.
14.3 CVM's obligation to retain the documents shall expire six months after the end of the contractual relationship. Statutory obligations to retain documents shall remain unaffected.
§15 SUPPLEMENTARY PROVISIONS
15.1 This contract shall be governed exclusively by German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods and to the exclusion of conflict of laws references to other legal systems.
15.2 The place of performance shall be the registered office of CVM. The place of jurisdiction for all disputes arising from or in connection with this contract shall be the registered office of the CVM branch concluding the contract, insofar as (i) all clients are merchants, legal entities under public law or special funds under public law and there is no joint place of jurisdiction with them, (ii) in all other cases only if the client or clients do not have a domicile in Germany.
15.3 The language of presentations, documents, reports, expert opinions, analyses, etc. shall be German.
15.4 Amendments or supplements to a contract referred to in § 1.1 as well as in individual cases to these General Terms and Conditions of Consultancy shall require text or written form, unless a stricter form is mandatory by law. The exchange of e-mails to notified e-mail addresses satisfies the form requirement agreed herein. This shall also apply to any amendment of this written form requirement.
15.5 The client may only assign rights from the contractual relationship with CVM with the prior written consent of CVM.
15.6 Should individual provisions of this contract be or become invalid or unenforceable in whole or in part, this shall not affect the remainder of the contract. In place of the invalid or unenforceable provision, a provision shall be deemed to have been agreed which objectively comes as close as possible to the economic purpose of the invalid or unenforceable provision. The same shall apply in the event of the occurrence of a gap in the contract that needs to be filled.