GTC

General Terms and Condition (GTC) regarding the Performance of Consultancy or other Services by philipp & associates Unternehmens- und Personalberatung (p&a)

§1. General Provisions

a) The business relationships between p&a and their clients shall be exclusively governed by the following GTC. Deviations from them shall only be effective when confirmed by p&a in writing. 

b) The present GTC shall have priority over contrary GTC of suppliers, clients, and other business partners. p&a does hereby automatically not adhere to these with reference to their own GTC.

c) In the case that p&a has included these GTC in a contract with the principal on one occasion, they shall also apply to all future contracts concerning consultancy, moderation, coaching and / or other consultancy services between the principal and p&a, even if p&a should not refer to or have referred to the GTC again in connection with subsequent contracts.

d) In addition to the individual contract with the principal and these GTC, only German law shall apply.


§2. Services of p&a

a) Unless otherwise agreed in an individual case, the scope of activities of p&a shall comprise the independent consulting of the principal as a service without being bound by instructions.

b) A specific outcome shall neither be owed nor guaranteed. The principal shall decide at their own discretion on the time as well as the type and scope of the measures recommended by p&a or coordinated with p&a. This shall apply even if p&a provides consultancy services during the implementation of coordinated strategies or measures by the principal.

c) The specific content and scope of the activities to be performed by p&a shall depend on the mandate granted in writing. In the case of any additional or complementary activities being deemed necessary, p&a shall advise the principal in that regard. In this case, the mandate of p&a shall be extended also by the principal requesting or accepting the additional or complementary activity.

d) p&a shall base their activities on the information or records provided by the principal as well as the figures submitted, all of which shall be considered as complete and correct. p&a shall not be obliged to examine whether any data is correct, complete, and orderly or to carry out any own research. This shall also apply in the case that p&a has to carry out plausibility checks or determinations of values that are solely based on the information, statements, or records submitted by the principal and do not involve its / their examination.

e) In principle, p&a shall perform the services themselves. In the case that p&a should hire the services of an independent consultant for the partial or complete performance of a concluded contract, the contractor shall agree to this consultant.

f) The provision of legal or tax advice as a subject matter of a contract shall be excluded.

g) Passing on or revealing written elaborations or findings of p&a to third parties shall require the previous consent of p&a and shall be made exclusively in the interest and by order of the client. The third party shall not be included in the scope of protection of the mandate between the principal and p&a as a result of this. This shall also apply in cases in which the third party in whole or in part bears or assumes on behalf of the client the remuneration of the activities of p&a.


§3. Cooperation Obligations of the Principal

a) The principal shall provide to p&a the complete and correct information and records necessary to perform the mandate.

b) In the case that after the request by p&a, the principal does not or not entirely comply with their cooperation activities they are obliged to, p&a shall be entitled – but not obliged – to terminate the concluded contract after previous written notification without observing a notice period. In such a case, p&a shall be entitled to invoice the principal either the actual services performed until the termination date or, instead, the agreed or the projected total remuneration minus any expenses saved due to the early termination of the contract.

c) The principal shall issue to p&a a declaration of completeness, which certifies that the information and records provided by them are complete and correct and there are no indications or no known indications that are suitable for raising doubts regarding their completeness and correctness.


§4. Maintaining Confidentiality

a) p&a shall treat all information regarding the principal and their company that p&a gains knowledge of in the scope of the collaboration as confidential, unless their task requires passing it on to third parties.

b) In the case the principal wishes that p&a does not disclose certain information under any circumstances, the principal shall designate this information as “strictly confidential” when providing it to p&a.


§5. Data Backup

a) In the case that the tasks of p&a involve working on or with data processing equipment of the principal, the principal shall ensure before the commencement of such works that the existing data may be reconstructed with reasonable effort from machine-readable data storage devices in the event they are deleted or altered.


§6. Results of Impediments to Performance

a) p&a shall be entitled to invoice at the agreed hourly and daily rates any work that accrued additionally on the part of p&a as a consequence of infringements of the principal’s obligations to provide information and to cooperate arising from a consultancy agreement and / or § 3 of these GTC, even if this exceeds the agreed fee budget. If the principal and p&a have not agreed upon hourly and daily rates, in the cases covered by sentence 1, p&a shall be entitled to invoice the principal their hourly rates plus turnover tax generally applicable at the time when the additional work is performed.

b) p&a shall be in default regarding their performance only in the event that p&a exceeds firmly agreed dates and/or p&a is liable for the delay. p&a shall not be liable for the unforeseeable drop-out or absence of the consultants designated for the project, force majeure, and other events that p&a was unable to foresee when entering into the contract and because of which the performance of p&a is at least temporarily impossible or unreasonably difficult. The results of war, terrorist attacks, industrial disputes, interventions of sovereign power, and similar circumstances, because of which p&a is directly or indirectly prevented from performing the service on behalf of the principal shall be equivalent to force majeure, unless p&a themselves have unlawfully caused the respective circumstances. 

c) In the case that the impediments to performance within the meaning of § 6. b) have a temporary character, p&a shall be entitled to postpone the fulfilment of their obligations by the duration of the impediment and by an appropriate starting phase. In the case the performance of p&a becomes permanently impossible due to such impediments, p&a shall be discharged from their obligations.


§7. Liability

a) Any information, explanations, advice or recommendations submitted orally or by telephone shall be given to the best of the consultant’s knowledge and belief. However, they shall only be binding when confirmed in writing.

b) The liability or warranty for the success of measures recommended by p&a shall be excluded. This shall also apply if p&a provides consultancy services during the implementation of coordinated or recommended strategies or measures.

c) Unless the principal is a consumer, p&a shall only be liable in cases of intent or gross negligence. In terms of the amount, the liability shall be limited to the typically foreseeable damage. Claims related to damages to life, body, or health shall not be subject to a limitation of liability.

d) As a precaution, the principal shall waive any possible claims against p&a arising from any fault during the initiation of the contract, except those based on intent and gross negligence; p&a shall accept this waiver.

e) p&a shall maintain a professional liability insurance with an insurance sum of EUR 250.000,00 (two hundred and fifty thousand) per insurance case.

f) p&a shall not be liable if the occurred damage is attributable to incorrect or incomplete information or records of the principal. The same shall apply if the principal does not notify p&a in writing of circumstances creating a liability within 14 calendar days after having gained knowledge thereof.


§8. Remuneration

a) Unless the parties have agreed otherwise in writing in an individual case, the services of p&a shall be invoiced and remunerated at the daily rates of p&a applicable in the respective case, plus disbursements, ancillary costs, daily expenses etc. 

b) p&a shall be entitled to invoice appropriate advance payments for the services expected to be performed or appropriate partial payments for services already performed. The consultancy shall commence after the first invoice regarding an advance payment has been settled.

c) In the case that requested advance payments, partial payments or other invoice amounts of p&a are not or not completely made or paid, p&a shall be entitled to suspend any further activities until the outstanding balance has been paid completely. Furthermore, p&a shall be entitled to terminated the concluded contract without observing a notice period if p&a has previously submitted a written reminder in which they gave warning of a possible termination. In such a case, p&a may invoice the principal either the actual services performed until the termination date or, instead, the agreed or the projected total remuneration minus any expenses saved due to the early termination of the contract.

d) Any projections made by p&a as to time periods, dates, and remunerations regarding the performance of a mandate shall constitute a non-binding estimation, because the expenditure of time may depend on factors that p&a is unable to influence.

e) In the case that the projected amount of time or remuneration is exceeded due to circumstances that the principal is responsible for (e.g. insufficient cooperation activities of the principal), the additional work resulting from that shall be remunerated in accordance with the daily rates of p&a applicable in the respective case. The same shall apply to exceedances of up to 30 per cent if they are attributable to other circumstances.

f) In the case that the actual working time exceeds the projected working time by more than 30 per cent, after having been informed by p&a, the principal shall be entitled to elect either to terminate the mandate and to remunerate under the agreed conditions the services performed until then or to continue the mandate and to pay for the exceeding working time additionally on the basis of daily rates.


§9. Terms of Payment

a) The remuneration agreed with p&a shall be net prices, payable plus the statutory turnover tax applicable in each case.

b) The invoice amounts of p&a without any deductions shall become due when the client receives the invoice. Partial payments, deposits, and advance payments shall be transferred to the account indicated by p&a not later than on the 5th calendar day after the invoice date. Amounts of final invoices shall be transferred to the account indicated by p&a not later than on the 7th calendar day after the due date. 

c) The parties shall agree that p&a shall be entitled to debit the remuneration they are entitled to directly through direct debiting during the term of the mandate awarded. 

d) In the case the principal is a consumer, the principal shall enter into default through a reminder from p&a, but at the latest 30 days after the receipt of the invoice. In such cases, default interest at the statutory amount shall be paid.

e) In the case the principal is not a consumer, the principal shall enter into default through exceeding the date of payment without the requirement of a reminder. From the date at which the default has occurred, the default interest rate shall amount to 8 per cent above the respective current base interest rate. In the case that the statutory interest rate is lower than this minimum rate, the principal shall be entitled to prove that a lower damage caused by the obligation to pay default interest has occurred.

f) The principal shall be entitled to set off only with counterclaims that are uncontested or have become res judicata; in other respects, any setoff shall be excluded. In the case the client is not a consumer, the client shall be entitled to exercise a right of retention only in the case that their counterclaims are uncontested or have become res judicata.


§10. Place of Performance, Data Storage, Place of Jurisdiction

a) The place of performance of the services of p&a shall be the seat of one of their offices that has concluded with the principal the contract of which the fulfilment is concerned. The place of performance of payments to p&a shall be the registered seat of p&a.

b) For the purpose of fulfilling the contract, p&a shall store, process, and utilise data of the contractual relationship in accordance with Section 28 of the German Federal Data Protection Act [Bundesdatenschutzgesetz] and shall reserve the right to pass this data on to third parties as far as this is necessary for fulfilling the contract.

c) The place of jurisdiction shall be the seat of p&a in the case that the principal is a businessperson, a corporate body under public law, a special fund under public law, or does not have a place of general jurisdiction in Germany. In the case of legal disputes involving the principal, p&a shall be entitled to recourse to the courts of a city / town in which the principal or – in the case of several contractual partners – one of the principals has their seat.


Additional Regulations for Contracts about Arrangement and / or Recruitment Services

§11. Area of Application

a) § 11 and § 12 shall apply in addition to §§ 1 to 10 to all contracts of p&a regarding consultancy, arrangement, or recruitment services in connection with purchases and / or sales of companies, investments in and shareholdings in companies, financing transactions and / or joint ventures.


§12. Excluded Warranties

a) Every assessment of a company is based on a number of assumptions and implies several uncertainties. As a result, p&a shall not assume any warranty for the fact that a sales price proposed by p&a is the highest or lowest one that may possibly be obtained, or that a purchase price proposed by p&a is the lowest or highest one that is appropriate.

b) p&a shall not assume any warranty for the marketability of a company or its parts or the conclusion of a desired financing transaction.

c) Furthermore, p&a shall not assume any warranty regarding the future profitability of a company, an investment in a company, or a joint venture.


Additional Regulations for Contracts with performance-related Remuneration

§13. Area of Application

a) § 13 and § 14 shall apply in addition to §§ 1 to 12 to all contracts according to which the remuneration of p&a depends in whole or in part from reaching a certain achievement and / or a result on the part of the principal and / or in the principal’s company.


§14. Duties to supply Information, Right of Control, Regulation concerning Costs

a) The principal shall deliver to p&a in writing and in a well-arranged manner all information that is required for determining and calculating the remuneration that p&a is entitled to without delay after reaching a result and / or an achievement that is relevant for the remuneration of p&a.

b) Upon request, the principal shall allow p&a to inspect all records that contain or might contain information regarding the arising of the claim for remuneration of p&a and / or regarding parameters for calculating its amount. The principal shall be entitled to request that this inspection be carried out by a person who is generally obliged to maintain confidentiality within the scope of exercising the respective profession (e.g. an auditor) to be selected and commissioned by p&a at their own discretion for the purpose of examining the claim for remuneration and determining its accurate amount.

c) In the case that the principal is in default regarding their obligation arising from § 14 a) and / or the inspection results in an increase in the remuneration that p&a is entitled to, the principal shall reimburse p&a the expenses related to the person who is generally obliged to maintain confidentiality within the scope of exercising the respective profession that accrued due to the inspection.


Additional Regulations for Contracts in the Field of Search for Personnel (Search for specialised and Management Personnel)

§15. Subject Matter of the Contract

a) p&a shall be a company that recruits qualified candidates for their principals. 

b) A candidate shall be considered as recommended by p&a when information have been submitted that enable the principal to identify the candidate, irrespective of whether the candidate was already known to the principal.

c) In the case that a candidate who was presented by p&a applied to the principal independent of that recommendation or was presented by another company, the principal shall be obliged to inform p&a of that fact before the commencement of the interview procedure.

d) In the case the principal fails to comply with this obligation or the principal commissions p&a to continue the recruitment activities with respect to this candidate, the principal shall owe the recruitment fee in accordance with § 17 if they employ the candidate.

e) In the case of it not being clear / controversial how the principal gained knowledge of the candidate in the first place, the principal shall provide corresponding proof upon the request of p&a. 

f) In the case that within 12 months after the recommendation of a candidate by p&a, the principal and this candidate enter into a contract, the parties shall assume that this contract was concluded only as a result of the recommendation by p&a. 


§16. Fee

a) The principal shall undertake to pay to p&a a fee if and when a contract (employment contract, contract with a freelance worker, investment contract under corporate law, contract with a company employing the candidate) was concluded as a result of a recommendation of p&a and the candidate commences his/her work with the principal. 

b) In the case of a contract being concluded with a candidate from a foreign country who needs a work permit for his work, the main contract shall only be deemed to be concluded when the work permit is granted. 

c) The fee shall be a percentage share of the prospective gross remuneration of the candidate during the first year of work with the company. This remuneration shall include the guaranteed gross remuneration of the year plus performance-related and performance-independent extended benefits such as bonuses, premiums related to signing contracts, a compensation for the use of an automobile, benefits related to the resettlement to another place of work, commissions, share packages, and all other benefits granted to the candidate. 

d) The fee percentage share shall amount to 22.5 per cent. 

e) A salary amounting to €50,000 shall be deemed to be the minimum assessment basis.

f) The commission shall be understood as net amount plus statutory value added tax, which shall be indicated separately by p&a.


§17. Accounting, Maturity, and Default

a) The accounting of the services shall be made in three instalments, which shall be due as follows: 50 per cent when awarding the mandate, 25 per cent when commencing the selection interviews, and the remaining amount after the termination and completion of the services.

b) In the case of the recruitment of interim managers, p&a shall make the accounting every week. p&a shall invoice the principal the usual costs for accommodation on site, weekend trips home, business journeys, trainings (e.g. transportation expenses, board and lodging, etc.), unless this was contractually excluded. 

c) In cases of interim management, the principal shall examine every week through an authorized representative the hours/days, which the interim manager worked and which are recorded in a performance record. The representative shall confirm the performance record with the representative's signature and company stamp. p&a shall receive the original document, the principal shall receive a copy. In the case that p&a was not provided with a performance record for accounting purposes signed by the principal, the accounting shall be made on the basis of a weekly working time of 40 hours, unless a deviating weekly working time was contractually agreed upon.

d) The invoice amounts shall be due upon receipt without any deduction. The indicated prices and fees shall be understood as net amount plus statutory value added tax. 

e) The invoice amounts of p&a without any deductions shall become due when the client receives the invoice. Partial payments, deposits, and advance payments shall be transferred to the account indicated by p&a not later than on the 5th calendar day after the invoice date. Amounts of final invoices shall be transferred to the account indicated by p&a not later than on the 7th calendar day after the due date. 

f) In the case the principal is not a consumer, the principal shall be in default through exceeding the date of payment without the requirement of a reminder. From the date at which the default has occurred, the default interest rate shall amount to 8 per cent above the respective current base interest rate. In the case that the statutory interest rate is lower than this minimum rate, the principal shall be entitled to prove that a lower damage caused by the obligation to pay default interest has occurred.

g) The principal shall be entitled to setoff only with counterclaims that are uncontested or have become res judicata; in other respects, any setoff shall be excluded. In the case the client is not a consumer, the client shall be entitled to exercise a right of retention only in the case that their counterclaims are uncontested or have become res judicata.

h) In the case the contract is terminated within 6 months after the candidate has commenced his/her work with the principal due to a reason attributable to the character or the conduct of the candidate, p&a shall receive comprehensive written information about this without delay and shall start a new search without requesting any further fee in that regard. Any expenses and disbursements of consultants and candidates shall be reimbursed. 


§18. Final Provisions

a) Any amendments and supplements to the mandate or these General Terms and Conditions – except extensions of a mandate in accordance with number 2 c) of these Conditions – shall only be effective when made in writing. An implicit amendment of the mandate or the General Terms and Conditions shall be excluded.

b) In the case a regulation of the mandate or of these Terms and Conditions is or becomes legally invalid, the validity of the remaining provisions of the mandate as well as of these Terms and Conditions shall remain unaffected. In such cases, the contractual parties shall agree upon a legally valid regulation which comes closest to the meaning, purpose, and the economic objective of the invalid provision. The parties shall proceed with the necessary modifications in the case of the mandate or these Terms and Conditions showing an irregular gap, which shall be filled by way of a supplementary interpretation of the contract.