Terms & Conditions

Terms & Conditions

The following terms and conditions are legally checked and verified. If you want to use parts of them for your projects, please contact us in advance.

The conditions apply to all business relations entered into by us. In the event of collisions, we will endeavour to find a mutually agreeable legal solution. Please note that although the terms and conditions are available in English, we only consider ourselves bound by the version written in German and that this version is valid under German law.

Overview

  1. subject matter of the agreement
  2. Cooperation between the contractual partners / exclusion of temporary employment and bogus self-employment
  3. Rights to the performance results
  4. Inventions
  5. Documentation and reporting obligations
  6. Notification obligations of the contractor
  7. Contractor's personnel, subcontractors
  8. Remuneration
  9. Default & deadlines
  10. Poor performance
  11. third-party property rights
  12. Limitation of liability
  13. Cooperation of the client
  14. term and termination
  15. Obligations after end of contract
  16. Change of performance after conclusion of the contract
  17. Liability insurance
  18. Data protection, confidentiality and security
  19. Rights of retention
  20. Text form
  21. Applicable law

Content of the AGB

These general terms and conditions apply to all consulting or other services as well as to the creation of intangible goods and products (including software or IT creation agreements), which are provided on the basis of an order or an order confirmation by Markus Vogl {Business & Data Science}. (hereinafter referred to as "Contractor"). The order or order confirmation shall be referred to within these provisions as the "Contract".

These general terms and conditions apply exclusively to companies, legal entities under public law or special funds under public law within the meaning of § 310 paragraph 1 BGB.

The Contractor only recognizes terms and conditions of the Client that contradict or deviate from the present terms and conditions if the Client expressly agrees to their validity in writing.

 

1 Subject of the contract

1.1 The contractor provides various consulting and other services to support contracting authorities, in particular in the following four superordinate service categories:

  • Company & Processes
  • IT & Data Services
  • Quantitative financial market analysis
  • Projects & Regulation

Structure, place of performance, definition of services as well as time planning are defined in the respective individual contract and can be supplemented by additional extended contractual conditions depending on the type of service or service to be performed. These supplements reflect the generally applicable professional or technical requirements which are considered to be customary in the market in the specified subject area.

1.2 The object of the contract is the services of the contractor agreed upon there. Unless otherwise specified, contractual services are not subject matter of the contract.

1.3 The contractor does not provide legal and tax advice. If necessary, the client is instructed to consult a lawyer and/or tax advisor.

1.4 Unless otherwise agreed, the Contractor owes careful performance of the service which corresponds to the state of the art in the field of the order at the time of performance of the service. The service is to be rendered in German or English, unless otherwise agreed. The contractor is obliged to be neutral in the provision of services.

1.5 The contractor is not entitled to represent the client in legal transactions, unless expressly agreed otherwise.

 

2 Cooperation between the contracting parties / exclusion of temporary employment and bogus self-employment
 

2.1 The contracting parties shall take organisational measures to ensure that the contractor's employees deployed in the course of the performance of the services are subject exclusively to the contractor's right of direction and disciplinary authority. There shall be no integration of the contractor's employees used for the provision of services into the client's organisation.

2.2 Both parties shall each nominate a responsible contact person in respect of all matters relating to the contract. The principal will communicate requirements for the service to be rendered exclusively to the responsible contact person named by the contractor and will not give instructions to the other persons employed by the contractor. The persons employed by the Contractor shall not enter into an employment relationship with the Customer, even if they perform services on the Customer's premises.

2.3 The contractor is entitled to provide services for other clients, even if they operate in the same industry. However, the contractor undertakes to avoid conflicts of interest and the provision of services for direct and immediate competitors as far as possible or, in the event of a negative outcome, to inform the client sufficiently.

2.4 As a matter of principle, the contractor shall determine the place and time of performance himself. However, temporal, spatial and technical requirements are to be observed insofar as they result from the service description or are contained in schedules or service plans agreed between the parties or are necessary to achieve the purpose of the order. Unless otherwise agreed, the Contractor shall be responsible for the work equipment necessary for the performance of the services.

2.4 If the contractor is a natural person and provides the services in his own person, the following applies:

  • The contractor shall act in his own name and on his own account vis-à-vis the client. He declares that he is legally and economically independent and in particular that he acts to a considerable extent as an entrepreneur for other contractual partners (see section 2.3). He undertakes to notify the Customer immediately of any changes in this respect during the term of the contract.
  • The contractor is responsible for his own retirement and illness provisions.
  • The contractor is obliged to pay due sales tax to the tax office in the proper manner and to tax remuneration independently and in the proper manner.

 

3 Rights to the performance results

3.1 Unless otherwise agreed in the contract, the Contractor shall grant the Customer the following rights at the time of performance of the service (including, but not limited to, any consulting results, IT services, possible performance conditions)

  • the non-exclusive,
  • locally unrestricted,
  • for IT services in any environment (including system environment),
  • for IT services transferable and for other services non-transferable
  • permanent, irrevocable and irrevocable,
  • for IT services for non-commercial purposes sublicensable,
  • in the case of IT services for commercial purposes to clients defined in §§ 99 to 101 GWB

the performance results in the original or in modified, translated, edited or redesigned form 

  • to use them, i.e. in particular to store and load them permanently or temporarily, to display them and let them run in the case of IT services, also insofar as duplications become necessary,
  • to modify, translate, edit or otherwise redesign it,
  • to store, duplicate, exhibit, in particular to reproduce in a non-public or public place, on any medium or in any other way, including by transmission, image, sound and other information carriers and radio transmissions, and in the case of IT services to make them publicly accessible with the exception of a source code
  • in databases, data networks and online services, including the right to make the performance results available to the users of the aforementioned databases, networks and online services for research and retrieval using tools selected by the client or for downloading,
  • in the case of IT services to be used and processed by third parties or to have them operated for the Customer, not only to use them for their own purposes but also to use them to provide services to third parties
  • in physical or incorporeal form, but only to clients defined in §§ 99 to 101 GWB.

With regard to IT services, the right of use also extends to their object and source code and the associated documentation. Further details can be found explicitly in the contractual and/or contractually extended form.

3.2 If the client makes full or partial use of his right to transfer the right of use of performance results or if he allows third parties to use them within the scope of his right of sublicensing or distribution, he must impose his contractual obligations regarding the content and scope of the rights of use on the third party. Any liability of the Contractor towards third parties in connection with sublicensing or distribution is excluded.

Insofar as the client has transferred his rights of use to the third party, he is no longer entitled to use them. However, the client is entitled to keep and use a copy exclusively for testing and archiving purposes.

3.3 The right of use refers to the performance results in all development, intermediate and final stages as well as to other materials necessary for the exercise of the rights of use, such as analyses, specifications, concepts and descriptions.

3.4 Insofar as the performance results are objects or embody performance results in objects, the contractor transfers ownership of the performance results to the client.

 

4 inventions

Unless otherwise agreed in the contract, the following provision shall apply to inventions made by the Contractor on the occasion of the performance of the contract:

  • The Contractor may freely dispose of the invention and the rights flowing from it and related to it and may apply for the invention as a patent or utility model. The Contractor hereby already grants the Customer, free of charge, a simple, non-exclusive, transferable, sublicensable and effective in rem right of use of patents and utility models applied for or granted now and in the future in connection with the use of the performance results affected by the invention. Insofar as this is not sufficient in individual cases, the Contractor shall grant rights of use to the extent necessary to enable the Customer or an authorized third party to exercise the rights to the performance results in accordance with the contract.
  • The Contractor shall ensure at its own expense that the exercise of the rights of use of the performance results to which the Client is entitled cannot be impaired either by the Contractor or by the inventor or any legal successor. In particular, he shall make use of any service inventions for this purpose.

 

5 Documentation and reporting obligations

5.1 Unless otherwise agreed, the Contractor shall document the services performed promptly in an appropriate manner in German or English in a standard electronic format and shall make them available to the Client upon completion of the service. The Contractor is obliged to grant insight into the current status of the documentation at any time.

5.2 Upon request, the contractor shall provide the client with a report on the status of the services during the contract period.

 

6 Contractor's notification obligations

6.1 The Contractor shall inform the Client without delay if a requirement or demand of the Client or an action resulting from the Contractor's contractual obligations is substantially incorrect, incomplete, contradictory or cannot be carried out as agreed or a more economical solution for the Client exists. If possible with reasonable effort, he shall at the same time inform the Customer of the consequences that are apparent to him. However, he shall not be liable for the non-fulfilment of these obligations if he should not have been aware of these circumstances when performing his services.

The contractor is not obliged to carry out examinations and tests that are not necessary for the provision of the services. In all other respects, the Contractor's obligations under § 241 (2) BGB (German Civil Code) shall remain unaffected.

6.2 As soon as the Contractor becomes aware that he will not be able to meet the agreed dates or execution deadlines, he will inform the Client immediately.

6.3 The agreed cooperation services of the customer must be requested by the contractor in good time.

 

7 Contractor's personnel, subcontractors

7.1 The persons employed to perform the services must be qualified in accordance with the agreement, irrespective of this, but at least in accordance with the purpose of the contract and the task. Irrespective of this, the contractor shall ensure that the personnel intended for the performance of the services have the qualifications which at least correspond to his specifications in this respect and to the requirements of the contracting authority in the award procedure. If agreed, the Contractor shall be obliged to employ only persons who are willing to be bound by the Obligation Act for the performance of any services owed on site. Unless otherwise agreed, communication with the client shall be in German or English.

7.2 In the following, no subcontractor and/or no performance by subcontractors shall be understood to mean all legal and/or tax advice provided by lawyers, tax advisors and/or other legally authorised parties in accordance with Section 1.3, which may be called in at the request of the Client, even if this is done on the recommendation of the Contractor and/or is necessary for the performance of the service. Subcontractors are parties other than those described above who are commissioned by Contractor and who are required to perform and provide the contractually agreed services (excluding the aforementioned legal and/or tax services).

7.2 The Contractor may only use subcontractors for the provision of services, or replace subcontractors used, if the Client expressly agrees to this. Consent may not be refused for improper reasons. The new subcontractor shall be trained at the expense of the Contractor. The Customer shall be deemed to have given its consent to the subcontractors named in the Contractor's offer.

7.3 The contractor may use persons employed to perform the contract

  • in agreed key positions only with the consent of the Client; the Client shall declare its consent immediately if the replacement is absolutely necessary and the Contractor offers a qualified replacement. Replacement is mandatory if further deployment is impossible.
  • who are not assigned to key positions, may be replaced by a qualified replacement, even without the consent of the client, but only with due regard to the client's interests.

The replacement person shall only be deemed qualified if he or she has at least the contractually required suitability.

7.4 The Client may demand the replacement of a person employed by the Contractor for the performance of the contract with justification if this person has breached contractual obligations more than insignificantly. In these cases, section 7.3 shall apply accordingly.

 

8 Remuneration

8.1 The lump-sum fixed price is the total remuneration owed for the service, which cannot be changed unilaterally. Material costs, travel times, travel expenses and incidental costs are included in the fixed lump sum. Subsequent claims by the contractor are excluded, unless the parties agree on a change in the services.

8.2 Unless otherwise stipulated in the contract, all-inclusive fixed prices and times stated in offers are non-binding estimates of the costs and time to be expected according to expert calculation.

8.3 If remuneration is agreed on a time and material basis, the following shall apply:

8.3.1 The time spent on the service is remunerated as remuneration. Travel time, travel expenses, material costs and/or incidental expenses shall be remunerated in accordance with the contractual agreement. Waiting times of the Contractor for which the Customer is responsible shall be remunerated in the same way as working hours. However, the Contractor shall be entitled to offset what he saves by not performing his services or what he acquires or maliciously omits to acquire by otherwise using his services. Payment of remuneration on a time and material basis shall be subject to the provision of signed proof of performance and other costs claimed by the contractor.

8.3.2 If an upper limit has been agreed in the case of remuneration according to expenditure, the Contractor shall inform the Client without being asked in each case of the processing status and the expected remaining expenditure if the upper limit has been reached to approx. 75% and 100% or if it becomes apparent that obstacles stand in the way of the complete provision of the service within the upper limit. Irrespective of this, the Contractor shall be obliged to provide the agreed service in full even if the upper limit is exceeded. This does not apply if the contractor is not responsible for the exceeding of the upper limit.

In this case, however, the Contractor is obliged to provide the agreed service in full at the agreed rates against additional remuneration on a time and material basis if the Client so requests.

8.3.3 Unless otherwise agreed, no more than one daily rate shall be paid per calendar day. An agreed daily rate can only be invoiced if at least eight hours have been worked. If less than eight hours of time are worked per day, these shall be invoiced pro rata. If an hourly rate has been agreed upon, hours that have begun shall be remunerated pro rata. Breaks are to be shown and are not remunerated. If more than six hours are worked, it is assumed that the contractor has taken a half-hour break. This shall not apply if the Contractor proves with the performance record that he has not taken a break. Unless the Customer has expressly refused to do so or unless otherwise agreed, separate remuneration shall be paid for services during the periods for which a surcharge or other increased rate of remuneration is agreed by law. As far as possible, the contractor will attempt to provide the promised service during the "surcharge-free" periods.

8.4 The remuneration at a fixed all-inclusive price is due after the service has been provided. Advance payments may be agreed in the contract to cover the contractor's running costs. The remuneration for services according to expenditure is due monthly in arrears, unless otherwise agreed.

8.5 Unless otherwise agreed, any remuneration due is payable within 30 days of receipt of a verifiable invoice.

8.6 If a price adjustment for the services has been agreed upon, the following shall apply, unless otherwise provided for: An increase of the remuneration can be announced for the first time 6 months after the beginning of the contract, further increases at the earliest 6 months after the previous increase has become effective. The increase must be reasonable and not contrary to the market trend relevant to the service and may not exceed 5% of the remuneration applicable at the time of the announcement of the increase.

8.7 All prices are understood to be subject to the applicable statutory value-added tax, insofar as value-added tax is payable.

 

9 Default & deadlines

9.1 The schedule of dates and services is set out in the contract or is agreed between the parties after conclusion of the contract. Unless otherwise agreed, such dates shall be binding. In the event of delays for which the Contractor is not responsible, the execution deadlines affected by the delay shall be postponed appropriately; this shall not affect the statutory claims of the parties.

9.2 The due date of payments begins with the invoice date.

9.3 If the Client is in default of payment in whole or in part, the Contractor shall be entitled to charge interest at the statutory rate of up to 8% p.a. above the base rate from the relevant date.

9.4 The contractor is also entitled to withhold services and/or to perform outstanding services only against advance payments and/or against the provision of bank securities. Any valuation of the securities shall be based on the CRR and customary market regulations and may be performed with the involvement of a professionally authorized institution and/or party.

9.5 The client is only entitled to offsetting rights if counterclaims have been legally established, are undisputed or have been confirmed and acknowledged in writing by the contractor.

9.6 Rights of retention on the part of the client are excluded, unless the opposing claim originates from the same contract and is undisputed, acknowledged in writing or legally established (analogous to clause 9.5).

 

10 Poor performance

If a service is not provided in accordance with the contract, the client is entitled to demand that the contractor provide the service in accordance with the contract within a reasonable period of time at no additional cost to the client. This shall not apply if the Contractor is not responsible for the breach of duty.

The other claims of the Customer, in particular for damages or reimbursement of expenses and his right to terminate the contract for good cause pursuant to Section 14.2, shall remain unaffected.

 

11 Property rights of third parties

11.1 If a third party asserts claims against the Customer due to the infringement of industrial property rights by the directly performed services of the Contractor and if the Contractor should have been aware of this in the course of the proper performance of its services and if the use of the services is directly impaired or prohibited as a result of this, the Contractor shall be liable as follows, without prejudice to the rights of the Customer pursuant to Section 10, provided that the Customer has not itself modified the performed services pursuant to Section 3 in the meantime and thus caused the infringement of industrial property rights of third parties

  • The Contractor may, at its own discretion and expense, either modify or replace the services in such a way that they do not infringe the property right, but essentially still correspond to the agreed functional and performance characteristics in a manner that is reasonable for the Client, or release the Client from claims against the owner of the property right.
  • If the change and replacement are impossible or only possible under disproportionate conditions for the contractor, he has the right to take back the affected services against reimbursement of the remuneration paid. The contractor must grant the client a reasonable phase-out period, unless this is only possible under unreasonable legal or other conditions.

11.2 The parties shall notify each other immediately of any claims asserted by third parties. The Customer shall not acknowledge the alleged infringement of industrial property rights and shall either leave any disputes, including any out-of-court settlements, to the Contractor or shall only conduct them with the Contractor's consent.

11.3 Insofar as the client is responsible for the infringement of property rights himself, claims against the contractor are excluded.

 

12 Limitation of liability

12.1 Claims for damages of any kind against the contractor or associated employees, representatives or vicarious agents, in particular those based on tortious liability, breach of duty and from violations of § 311 BGB (German Civil Code), are limited to grossly negligent or intentional conduct. The liability for intentional or grossly negligent behaviour of vicarious agents is limited to typically foreseeable damages.

12.2 The burden of proof shall lie with the party asserting the claims for damages pursuant to Section 12.1.

12.3 The limitation of liability according to clause 12.1 shall not apply in the event of damage to life, body, health or in the event of a verifiable breach of cardinal obligations, insofar as these are directly attributable.

12.4 Claims for loss of profit are excluded.

12.5 Claims for damages against the respective contracting parties shall not become statute-barred if the liability relates to intent. This shall not affect the statutory limitation regulations, which are limited to three years after the breach of the respective obligation or action.

12.6 In the event of loss of data, the Contractor shall only be liable for the expenditure which would have been necessary for the restoration of the data if the Client had made proper and regular data backups. The limitation does not apply if and insofar as the data backup is part of the services to be provided by the contractor.

 

13 Cooperation of the client

13.1 The customer shall provide the contractor with the necessary information and documents from his sphere of responsibility in good time. The principal will grant access to the contractor's employees to his premises and the information technology infrastructure available there in good time and will hand over the documentation available to him in good time, in each case to the extent necessary for the performance of the service and to the extent that the statutory and agreed personal requirements (e.g. security checks in accordance with the Security Check Act - SÜG -) are fulfilled. If the Customer does not, not in time or incompletely comply with his cooperation services despite the Contractor's request, the Contractor may submit an offer to provide these services himself instead of and at the expense of the Customer. Other claims of the contractor remain unaffected.

13.2 If teleservice is agreed upon, the Customer shall provide the necessary technical equipment on its side and enable access to the system in accordance with the provisions of a teleservice agreement.

13.3 The client is responsible for proper data backup.

 

14 Term and termination

14.1 If the duration of the contract has neither been agreed upon nor can be inferred from the nature or purpose of the services, it may be terminated in whole or in part by either party by giving three months' notice to the end of a calendar month, but not before the end of any minimum contract period agreed upon in the contract. A different period of notice may be agreed in the contract.

14.2 In addition, the contract may be terminated in whole or in part by either contracting party for good cause - without observing a period of notice - within a reasonable period of time from the time the reason for termination becomes known. Good cause is deemed to exist if facts are given on the basis of which the party giving notice of termination can no longer be reasonably expected to continue the contract, taking into account all circumstances of the individual case and weighing up the interests of the contracting parties. If the good cause consists in the breach of a contractual obligation, termination shall only be permissible after the unsuccessful expiry of a period set for remedy or after an unsuccessful reminder, unless the contract has been terminated pursuant to § 314 in conjunction with § 323 paragraph 2 BGB a setting of a time limit is dispensable. In the event of termination for good cause, the Contractor shall be entitled to remuneration for the services rendered under the contract until the termination takes effect.

 

15 Obligations after end of contract

15.1 At the end of the contract, the contractor shall immediately and without being asked to surrender all documents, aids, materials or objects received from the customer which were not permanently handed over to him for the purpose of executing the contract as intended. This also applies to all copies. Furthermore, all performance results are to be handed over to the principal in any form; insofar as the granting of exclusive rights has been agreed, this applies including the copies made.

15.2 The client is entitled to demand secure deletion or destruction in whole or in part instead of surrender. This must be proven to the client on request and at his discretion by means of a corresponding declaration or otherwise. Statutory storage obligations remain unaffected.

15.3 Costs for a deletion or destruction according to section 16.2 can be charged to the client to a reasonable extent, if this is done by a third party commissioned to do so.

 

16 Change in performance after conclusion of the contract

The Client may demand changes to the scope of the services at any time after conclusion of the contract, unless this is unreasonable for the Contractor. The change procedure shall be documented, unless otherwise agreed. If the scope of the Contractor's agreed services changes, the Contractor may demand that the contract be amended accordingly. Irrespective of this, § 2 of VOL/B (2003 version) shall apply.

 

17 Liability insurance

17.1 Insofar as agreed, the contractor shall, at the request of the customer, prove that he has an industrial liability insurance policy or a comparable insurance policy from a member state of the EU that is customary in the market within the scope and scope.

17.2 The Contractor shall maintain this insurance cover until the end of the service contract. If the contractor does not comply with this obligation, the customer is entitled to terminate the contract after unsuccessful setting of a reasonable period of notice if it is no longer reasonable to expect the contractor to adhere to the contract. Further claims of the client, especially claims for damages, remain unaffected.

17.3 Notwithstanding Clauses 17.2/3, the Customer shall be obliged to provide appropriate security for major projects and services which exceed the Contractor's influence or expose it to incalculable risks.

 

18 Data protection, confidentiality and security

18.1 If personal data are collected, processed or used by the Contractor on behalf of the Client, the Contractor shall, at the Client's request, conclude an agreement on order processing that complies with the statutory provisions.

18.2 Contractor shall ensure that all persons entrusted by it with the processing or performance of the Agreement comply with the statutory provisions on data protection. The obligation to maintain data secrecy as required by data protection law must be performed at the latest before the first commencement of the activity and must be proven to the principal upon request.

18.3 The Client may terminate the Agreement in whole or in part on an extraordinary basis if the Contractor culpably fails to comply with its obligations under Sections 18.1 and 18.2 within a set reasonable period of time or if the Client cannot reasonably be expected to adhere to the Agreement any longer because the Contractor has violated data protection regulations intentionally or through gross negligence.

18.4 The parties are obliged to treat all confidential information, business and company secrets obtained within the scope of the contractual relationship as confidential, and in particular not to pass them on to third parties or use them for purposes other than those stipulated in the contract. The exchange of experience of the client with and within the public sector remains unaffected, as does the fulfilment of legal obligations of the client. The obligation to treat business and trade secrets obtained on the basis of the contract as confidential shall remain unaffected.

18.5 Contractor shall be entitled to pass on confidential information only to such subcontractors whose use has been expressly approved by Customer if and to the extent that such confidential information is necessary for the performance of the respective services by the subcontractor ("need-to-know" principle). This shall only apply if the subcontractor has previously committed itself to the Contractor to at least the same extent of confidentiality as the Contractor has committed itself to the Customer. The subcontractor must not disclose the confidential information, unless the Customer has expressly agreed to such disclosure in advance.

18.6 Confidential information is information that a reasonable third party would consider worthy of protection or which is marked as confidential; this may also be information that becomes known during an oral presentation or discussion. Confidential information may only be used for the purpose of fulfilling obligations under the contract. The obligation of confidentiality does not apply to information which is already lawfully known to the parties or which becomes known outside the contract without breach of a confidentiality obligation.

 

19 Rights of retention

Rights of retention and rights to refuse performance on the part of the contractor are excluded, unless the client does not dispute the underlying counterclaims or these have been legally established.

 

20 Text form

Unless otherwise regulated, contractual notifications and declarations require at least text form.

 

21 Applicable law

The law of the Federal Republic of Germany shall apply, to the exclusion of standards that refer to another legal system and to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).