Version as of: September 2020
1.1 These General Terms and Conditions of Business for the Provision of Consultancy Services (“General Terms and Conditions”) shall apply exclusively to contracts with entrepreneurs within the meaning of Section 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), legal persons under public law and special funds under public law.
1.2 These General Terms and Conditions cover all the consultancy services provided by Dr. Bartels M&A Consulting GmbH (“BMA”) to its clients (“Client”). The services referred to in the first sentence shall be performed exclusively under the terms and conditions set out herein. Other provisions, in particular general terms and conditions of business of the Client, shall not apply, regardless of whether or not they have been expressly rejected by BMA. These General Terms and Conditions shall also apply exclusively even if BMA performs or agrees to perform a service without reservation whilst being aware of different terms and conditions.
1.3 Unless otherwise agreed, the General Terms and Conditions in force at the time of the conclusion of the respective contract with the Client, in any case in the version last notified to it in text form, shall apply.
1.4 These General Terms and Conditions shall also apply to future similar legal transactions between BMA and the Client.
1.5 Individual agreements made between BMA and the Client on a case-by-case basis shall take precedence.
1.6 References to the applicability of statutory provisions are purely for the purposes of clarification. Therefore statutory provisions shall apply regardless of any such clarification, unless they are directly modified or expressly excluded in these General Terms and Conditions.
2.1 Contracts between the parties shall be concluded as described below: BMA shall first send a non-binding offer for the conclusion of a consultancy agreement to the Client. The non-binding offer shall contain these General Terms and Conditions and shall generally be presented again at the Client site by BMA. If the Client has any requests for changes, BMA shall send it a suitably revised offer. The non-binding (revised) offer can then be accepted by the Client in writing (by email) or by telephone. This shall constitute a binding offer for the conclusion of the respective consultancy agreement. The contract shall become effective only when BMA confirms the Client’s offer by means of a written order confirmation signed by BMA and the Client sends this order confirmation back to BMA countersigned.
2.2 Subsequent amendments and additions to the contract must be in writing in order to be valid. BMA is willing to implement subsequent changes requested by the Client, provided this does not entail any additional costs or delays in relation to the agreed consultancy services. Otherwise BMA shall prepare a supplementary consultancy offer within 14 days of receiving the written request for a change or an addition, in which the subsequent changes, additions, extra expenses and costs are taken into account. If the Client does not confirm this within 14 days of receiving the supplementary consultancy offer the changes shall not become part of the contract.
2.3 The respective contract shall end upon the completion of the respective project specified in the contract or, if this cannot be implemented, no later than two months after the last act of performance by BMA. It may be terminated during its term in accordance with statutory provisions.
3.1 The consultancy services to be provided by BMA (“Services”) and their scope shall be set out in the respective contract, which shall consist of the non-binding offer by BMA, the corresponding order confirmation signed by both parties, the General Terms and Conditions of Business and any additional individual agreements between the parties. The Services shall be performed in accordance with the contractual agreement. In this regard BMA shall not owe any success in relation to the outcome of the consultancy, but solely the performance of the Services as such.
3.2 The Services shall in principle cover typical areas of business consultancy. This may include, in particular, Services in the following areas:
• Corporate governance/ management consultancy
• Financial Advisory
• Transactions Advisory
• Finance and accounting (controlling)
• Expert opinions, concepts or reports for use vis-à-vis third parties
BMA shall perform the Services in compliance with generally accepted rules and standards for consultancy services. Subject to the provisions in clause 11, the Client shall be entitled to assert its statutory rights in this regard. Data supplied by third parties or by the Client shall be checked solely for plausibility. The conclusions and recommendations to be derived from the investigations shall be made to the best of BMA’s knowledge and belief and in accordance with generally accepted rules of science and practice.
3.3 BMA shall comply with all statutory provisions as well as administrative and other public requirements in connection with the provision of the Services. If the Services take place outside the Federal Republic of Germany, the Client must obtain any permits or authorisations required in the respective country. BMA shall provide the necessary documentation to the Client or to the respective authority.
3.4 BMA undertakes to inform the Client of the provided, ongoing or planned Services at appropriate intervals in accordance with the project plan.
4.1 The respective contract and any agreements made on the basis thereof do not establish an employment relationship between the Client and BMA. Subject to the provision in clause 4.4, the Services shall be performed exclusively by employees and freelancers of BMA (“Staff”). BMA shall be solely responsible for compliance with statutory and administrative obligations towards its Staff. Solely BMA shall conclude contracts and take measures to govern the relationship with Staff.
4.2 Solely BMA shall be entitled to give Staff instructions regarding the provision of the Services (in particular regarding their content, time, location, speed and execution as well as working conditions and hours), to select and otherwise organise Staff for the provision of the Services. Instructions from the Client to BMA shall be issued via the project manager(s) appointed by BMA.
4.3 BMA shall deploy trained, sufficiently experienced, professionally qualified and committed Staff according to the scope of performance and, unless otherwise agreed, provide all the materials required for the provision of the Services.
4.4 For the purposes of the provision of the Services BMA shall be entitled to commission subcontractors or other third parties to provide the Services without the Client’s prior consent. The provisions in clauses 4.2 and 4.3 shall apply by analogy.
The Client undertakes to refrain from poaching Staff deployed by BMA for the duration of the contract, regardless of whether they are employees, freelancers or other third parties. In the event of a breach of this non-solicitation clause the Client shall have to pay BMA a contractual penalty of EUR 30,000. The assertion of further claims for damages shall remain unaffected thereby. In such a case the contractual penalty shall be set off against any further claims for damages.
6.1 The Client must support BMA in the provision of the Services by cooperating appropriately where necessary. The Client must provide BMA with, in particular, the required information and data.
6.2 The Client shall be in default of acceptance if it fails to accept the Services on the respective performance date (in accordance with the project plan).
6.3 If the Client defaults in acceptance or fails to cooperate or if there is a delay in the Services to be provided by BMA for other reasons for which the Client is responsible, BMA shall be entitled to demand the agreed remuneration for the defaulted Services, without being obliged to perform them subsequently, and to demand compensation for the resulting damage as well as any additional expenses incurred. Further claims shall remain unaffected.
7.1 Performance time limits and dates shall be agreed individually.
7.2 They shall be specified in text form. They shall be non-binding unless they are expressly designated as “binding” in the individual contract or project plan. Subsequent amendments to the contract may lead to an extension of the agreed performance time limits and a postponement of the performance dates.
7.3 Performance time limits shall commence upon the conclusion of the contract, unless expressly stipulated otherwise. Performance time limits shall not commence, however, before the Client has fulfilled any existing or agreed cooperation obligations it might have in full and, where advance payment is agreed, not before BMA has received the agreed payment.
7.4 In the case of non-binding performance time limits or dates BMA shall not be in default of performance before the fruitless expiry of a reasonable grace period set by the Client in writing.
8.1 The remuneration for the Services shall be determined in accordance with the respective contract and shall generally be on an hourly basis unless a different arrangement, for example a lump sum, has been agreed. Any VAT due shall be calculated separately at the applicable statutory rate and shall be paid by the Client.
8.2 Unless advance payment or a different arrangement has been agreed, invoices shall be paid without any deduction within 14 days of the provision of the Services and receipt of the invoice. Unless otherwise agreed, payments must be made in euros.
8.3 Cashless payment by the Client can be made, with the effect of discharging the debt, exclusively to the account specified by BMA in the contract or the respective invoice. In any case, all the payments for BMA must be made free of any charges.
8.4 If the payment deadline is exceeded, the Client shall fall into default of payment without any further reminder. The decisive factor for determining the timeliness of the payment shall be when the invoice amount is received in the specified account.
8.5 While in default of payment the Client must pay default interest at the statutory rate. Further claims for damages shall remain unaffected.
8.6 If the Client should fall into default of payment with at least two payments under the business relationship with BMA, all the Client’s payment obligations under all its business relationships with BMA shall become due immediately.
If, after the conclusion of a contract with the Client, it should transpire that due to the latter’s financial situation the fulfilment of its contractual obligations is jeopardised (in particular upon stoppage of payments, filing of an application for the opening of insolvency proceedings, attachment and enforcement measures), BMA shall be entitled to refuse to perform the Services until the Client has paid the price in advance or provided adequate security, at BMA’s own discretion.
10.1 The Client undertakes to treat all the information provided by BMA within the scope of an individual contract as confidential and to refrain from disclosing it to any third party without BMA’s prior written consent. Any non-disclosure agreement concluded between the parties shall take precedence over the provisions of this clause 10.
10.2 Such information includes, in particular, all the analyses, expert opinions, reports, organisational plans, drafts, drawings, technical data, prices, conditions, methods, lists and calculations produced by BMA, including digital information (data) as well as other know-how developed or contributed by BMA within the scope of the contract and all business secrets within the meaning of Section 2(1) of the German Act on the Protection of Business Secrets (Gesetz zum Schutz von Geschäftsgeheimnissen – GeschGehG).
10.3 The confidentiality obligation shall not apply for information that is generally known and has been lawfully obtained from third parties.
10.4 If the Client should discover that confidential information has become known to third parties unlawfully, it must inform BMA of this without undue delay.
11.1 BMA shall be liable, regardless of the nature of the breach of an obligation, including unlawful acts, in the event of any intentionally wrongful or grossly negligent acts on the part of BMA. In all other respects liability for negligence shall be excluded, unless otherwise stipulated hereinafter.
11.2 In the event of breaches by BMA of material contractual obligations which constitute a pre-requisite for the proper performance of the contract and on compliance with which the Client may rely, BMA shall be liable for any negligence, but in the case of minor negligence only up to the amount of the typical, foreseeable damage.
11.3 The liability limitations and exclusions in clauses 11.1 and 11.2 shall not apply for damage arising from injury to life, limb or health, or in the event of the malicious concealment of defects, or in the event of liability for claims based on the German Product Liability Act (Produkthaftungsgesetz – ProdHaftG), or in the event of gross negligence on the part of governing bodies or executive staff of BMA.
11.4 Where the liability of BMA is excluded or limited, this shall also apply for employees, workers, representatives and vicarious agents of BMA.
Until the agreed remuneration has been paid in full by the Client, BMA shall have the right to retain documents provided by the Client within the scope of the contractual relationship. Once the remuneration has been paid in full, BMA must, on request, surrender all the documents that the Client or a third party has provided to BMA for the purposes of the performance of the contractual relationship. This shall not apply for correspondence between the parties or simple copies of the expert opinions, reports, organisational plans, drawings, lists, calculations, etc., produced within the scope of the contractual relationship, provided the principal has received the originals or where a different arrangement is agreed in a signed non-disclosure agreement between the parties.
13.1 If BMA is prevented from fulfilling its contractual obligations due to force majeure, such as war, terrorism, riots, natural disasters, fire, epidemics or other unforeseeable circumstances for which BMA is not responsible, such as strikes or lawful lockouts, operational or transport disruptions, the agreed performance time limits and performance dates shall be extended by the same amount of time as the obstruction plus a reasonable lead time. BMA shall also not be responsible for the aforementioned circumstances if they occur during an already existing delay. BMA shall notify the Client of the start and likely end of any such circumstances as soon as possible. If the obstruction lasts six weeks or longer, either party may terminate the contract without notice.
13.2 The Client may not assign the rights and obligations that are incumbent upon it in connection with the Services to third parties, in whole or in part, without the prior written consent of BMA.
13.3 All the legal relationships between BMA and the Client shall be governed by German Law with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
13.4 The exclusive place of jurisdiction for any and all disputes arising from or in connection with the provision of the Services shall be the Hamburg Regional Court.
13.5 If any individual provisions of these General Terms and Conditions should be or become invalid, this shall not affect the validity of the remaining provisions.
13.6 These General Terms and Conditions are drafted in both German and English. In case of discrepancies or contradictions between the German and the English version, the English version shall prevail.
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