1.1 These General Terms and Conditions of Contract (hereinafter GTC) are the basis and component of any commissioning of services (hereinafter referred to as order) to Cremanski & Company GmbH, Linienstraße 145, 10115 Berlin, represented by the Managing Director Michael J. Jäger, registered in the commercial register of the District Court of Charlottenburg (Berlin) to HRB 208647 B (hereinafter C&C), by a client (hereinafter referred to as Customer; C&C and customer hereinafter individually form a party and together parties). They consist of a general part that applies to all contractual relationships (module A) and special parts that apply in conjunction with the general part to special types of contracts or services (modules B and C).
1.2 An offer from the customer to place an order shall be deemed to be an acceptance of this GTC.
1.3 These GTCS shall apply exclusively. They shall also apply to all extensions and amendments of orders, even if no specific reference is made to them.
1.4 Any contractual terms and conditions of the Customer that deviate from, conflict with or supplement these GTC shall only become part of an order if and to the extent that C&C specifically agrees to them or parts thereof in writing..
2. Composition and content of orders
2.1 All offers from C&C are subject to change. The right to make changes is reserved..
2.2 Orders between C&C and the Customer shall only be concluded by C&C's written acceptance of an offer made by the Customer.
2.3 Changes to or deviations from individual contractual services from the agreed content of the contract are only permissible with specific confirmation by C&C.
2.4 Legally relevant declarations and notifications to be made by the Customer to C&C after the conclusion of a contract (e.g. setting of deadlines, reminders, declaration of withdrawal) must at least be made in text form to be effective.
2.5 The subject and scope of the order are defined in the respective order and the order confirmation. C&C owes the agreed performance, not a specific economic success. Each order shall be executed by C&C in accordance with the generally accepted rules and the state of the art in science and technology as well as in compliance with its own experience beyond this and all official and statutory regulations and provisions at the time of the performance of the service in a self-responsible, conscientious, independent and discreet manner.
2.6 The Customer shall provide C&C with all information and documents necessary for the proper execution of the order in a timely and complete manner. C&C shall provide all consulting services on the basis of the data, documents and information provided by the Customer or its agents. These shall be checked by C&C for plausibility. The guarantee for their factual correctness and completeness lies exclusively with the Customer.
2.7 C&C is entitled to make use of expert persons and to engage third parties as subcontractors for the execution of the order. C&C is not obligated to present the offers or invoices of third parties to the Customer.
3.1 The amount of remuneration results from the individual order. Services not agreed upon at the time the order is placed, which are performed at the customer's request, shall also be remunerated..
3.2 All agreed remunerations are in euros and are net amounts, i.e. they are owed plus the statutory value-added tax applicable at the time the service is provided.
3.3 Several customers are jointly and severally liable for all claims of C&C arising from the order.
3.4 The remuneration shall be settled by separate invoicing. Unless otherwise agreed, the remuneration is due within 7 calendar days after invoicing and without deduction..
4 Offsetting, retention and prohibition of assignment
4.1 The customer may only offset undisputed or legally established claims or assert a right of retention due to undisputed or legally established claims from the same contractual relationship..
4.2 The Customer may assign claims against C&C or transfer them to third parties for collection only with C&C's prior written consent. This does not apply to assignments within the scope of § 354a HGB..
5 Acting in the name and on behalf of the customer
5.1 Without the Customer's consent, C&C is not entitled to order external services necessary for the performance of the order on behalf and for the account of the Customer.
5.2 Insofar as, in individual cases and with the consent of the Customer, contracts for third-party services are concluded in the name of and for the account of C&C, the Customer undertakes to indemnify C&C internally against all liabilities arising from the conclusion of the contract, insofar as they are not based on an intentional or negligent breach of duty by C&C towards the third party.
6 Consequences of performance deficits
6.1 Additional expenses incurred by C&C as a result of violations of the Customer's duties to inform and cooperate under the Order may be invoiced by C&C at the agreed hourly or daily rates, even if this results in an agreed remuneration budget being exceeded.
6.2 C&C shall only be in default with its services if deadlines that have been specifically agreed upon at least in text form are exceeded and C&C is responsible for the delay. C&C shall not be responsible for the unforeseeable loss of consultants and subcontractors intended for the project, force majeure and other events which were not foreseeable at the time of conclusion of the contract and which make the performance of C&C at least temporarily impossible or unreasonably difficult.
7 Defect claims
7.1 C&C is responsible to provide the agreed services properly.
7.2 Any defects shall be notified to C&C without undue delay, at least in text form. Inaccuracies, such as typing errors or obviously recognizable calculation errors, are not defects within the meaning of this provision and may be corrected by C&C at any time without the Customer being able to derive any claims therefrom. The services shall be deemed to have been duly provided if they have been accepted by the Customer without objection.
7.3 C&C does not guarantee that the provision of the agreed service by the Customer will lead to certain results, in particular sales-generated revenues
7.4 If C&C is responsible for a defect or a breach of duty, the Customer shall be obliged to remedy the defect or breach of duty free of charge if the Customer has a legitimate interest in doing so. If the owed subsequent performance fails twice, the Customer may either withdraw from the order or demand a reduction.
7.5 The Customer may only claim damages due to defects if C&C is at fault and only after the second failed attempt at subsequent performance.
7.6 The assertion of claims by the customer due to defects shall be subject to a limitation period of six months. Negotiations on claims arising from this contractual relationship shall not suspend the limitation period.
7.7 C&C is not liable for service disruptions and damages to the customer in connection with services that have been specifically identified by C&C as third-party services.
8.1 C&C shall pay damages or reimbursement of futile expenses, irrespective of the legal grounds (e.g. from contractual and quasi-contractual obligations, material defects and defects of title, breach of duty and tort), only to the following extent:
a) The liability in case of intent, fraudulent intent and under warranty is unlimited.
b ) In the event of gross negligence, C&C shall be liable to the amount of the typical damage foreseeable at the time of conclusion of the contract.
c) In the event of a breach of a cardinal obligation due to simple negligence (obligation for the fulfillment of which is a prerequisite for the proper performance of the contract, compliance with which the Contractor regularly relies on and may rely on, and the breach of which jeopardizes the achievement of the purpose of the contract), C&C shall be liable in the amount of the typical damage foreseeable at the time of conclusion of the contract, however, not exceeding EUR ... per case of damage and EUR ... for all cases of damage arising from and in connection with the contract as a whole.
8.2 C&C reserves the right to object to contributory negligence. In particular, the Customer shall be obliged to back up data and to defend against malware in accordance with the current state of the art.
8.3 In the event of injury to life, body and health and in the event of claims under the Product Liability Act, the statutory provisions shall apply without modification.
8.4 Insofar as the customer is entitled to claims for damages in accordance with this provision, these shall become statute-barred after two years, insofar as the statute of limitations is not mandatorily prescribed unless stated by the law. The limitation period shall commence at the end of the calendar year in which the event giving rise to the claim for damages occurs.
9 Copyright protection and rights of use, damages
9.1 All copyrights to the work performed by C&C, by its employees or by third parties commissioned by it, such as analyses, reports, plans, organizational documents, expert opinions, etc., remain with C&C.
9.2 The provisions of the UrhG shall also be deemed to have been agreed if the level of creation required under Section 2 (2) UrhG is not achieved in an individual case.
9.3 Rights of use are granted to the customer after full payment of remuneration for the agreed contractual purpose. In principle, only the simple right of use is granted; the granting of an exclusive right of use must be expressly agreed. The Customer may only use the work performed by C&C for contractually defined purposes in his company. Without the consent of C&C, the work may not be changed, neither in the original nor in the reproduction. Any imitation, even partial, is not permitted. Any reproduction or disclosure requires the written consent of C&C. Any unauthorized reproduction or disclosure shall exclude any liability of C&C towards third parties and shall entitle C&C to assert claims for injunctive relief and damages.
9.4 The Customer is obligated to name C&C as the author in the case of reproductions and publications of the work. A breach of this obligation entitles C&C to liquidated damages, whereby the amount of the claim for damages shall be 100% of the agreed remuneration. The right to prove higher damages remains unaffected.
9.5 Proposals and instructions of the customer have no influence on the remuneration and do not establish co-authorship.
10 Confidentiality, Data Protection
10.1 C&C and Customer equally agree to keep the terms of each Order confidential and not to disclose them to any person, except to their associates or professional advisors or as necessary to enable the Services described to be performed.
10.2 C&C and Customer equally agree to keep the terms of each Order confidential and not to disclose them to any person, except to their associates or professional advisors or as necessary to enable the Services described to be performed.
11.1 C&C is entitled to mention the company name(s) of the Customer as well as brief descriptions of the order contents in a reference list, which C&C will use as references with other clients. The reference list of C&C is part of the C&C website and is used in the context of presentations and lectures.
11.2 Further mentions must be discussed with the contractual partner in advance.
11.3 This declaration of consent can be revoked at any time.
12.1 The right to ordinary termination of a placed order results from the order.
12.2 The right to terminate without notice for good reason remains unaffected. If the customer terminates for good reason that is not based on C&C's conduct contrary to the contract, C&C is entitled to the part of the remuneration that corresponds to the services provided.
12.3 Any termination must be at least in text form (easy to save and print, e.g. e-mail) to be effective.
13 Final provisions
13.1 The law of the Federal Republic of Germany shall apply. The validity of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded
13.2 The place of performance for the services shall be the registered office of C&C and the exclusive place of jurisdiction for all disputes arising from or in connection with the business relations between the parties shall be Berlin, insofar as the Customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law.
Modules A and B of these GTC apply to the provision of services and work services of any kind.
15 Self-determination of service provision
C&C has to execute orders on its own responsibility. C&C alone decides where, when and how tasks are fulfilled; C&C is not subject to the customer's specifications and instructions. However, C&C must observe the professional specifications of customers to the extent that this requires the proper execution of the individual order.
16 Mediation of services and work
As far as the subject matter of an order is the mediation of services, the following provision shall apply in addition:
If, in the case of an intermediary transaction, it becomes impossible for the intermediary contractor to provide the service for which it is responsible, C&C shall be indemnified against all claims by third parties. In particular, C&C is not obligated to provide substitute services to the Customer and third parties.
17 Acceptance and warranty for work services
17.1 Only in the event that C&C has to provide work performances pursuant to §§ 631 et seq. BGB, C&C shall immediately notify the Customer of the readiness for acceptance of the overall performance.
17.2 The Customer shall inspect the performance without delay. It shall be deemed to be accepted if the Customer does not notify C&C of the defects it has identified within a period of 30 days after notification of completion. In this case, the Customer shall grant C&C a grace period to remedy the defects.
17.3 At the request of both contracting parties, partial acceptances may also take place, which shall be agreed in text form. The procedure according to the above clauses 17.1 and 17.2 shall apply.
17.4 Reservations at the time of acceptance due to known defects must be made in writing.
17.5 Unless agreed differently in the offer, the statutory provisions shall apply to any warranty claims of the Customer against C&C.
18.1 The remuneration shall become due upon completion of the order, unless agreed differently between the parties. If a work performance within the meaning of §§ 631 ff. BGB (German Civil Code), payment shall become due after acceptance (cf. Section 15) and submission of the final invoice. In the case of orders with a processing time of more than four weeks, the customer shall make regular, reasonable payments on account, unless agreed differently between the parties.
18.2 Expenses for ancillary costs as well as travel costs and expenses for journeys to be undertaken in connection with the order and agreed with the client shall be reimbursed by the client.
19 Unfair competition, recruitment of employees, contractual penalty
19.1 The customer undertakes to always act in accordance with the principles of fair competition. He will neither directly nor indirectly
a. induce employees of any kind employed by C&C, in particular employees and freelancers, to terminate their cooperation with C&C by using unfair means or by pursuing unfair objectives within the meaning of the German Unfair Competition Act (UWG) and court casuistry;
b. Act as a recruiter or referrer for employees of any kind hired by C&C, especially employees and freelancers;
19.2 A lump-sum contractual penalty of EUR 5,000.00 is agreed for each case of breach of an obligation under Section 19.1 above to the exclusion of Section 348 of the German Commercial Code (HGB). In the event of a permanent breach of the prohibition, the contractual penalty shall be established for each commenced week, up to a maximum of EUR 50,000.00. C&C reserves the right to claim further damages, against which, however, the contractual penalty shall be offset.
19.3 If the Customer takes over an employee of any kind used by C&C, in particular employees and freelancers, during an existing contract or in direct temporal connection with such a contract, C&C shall be entitled to a brokerage fee in the amount of 30% of the gross annual salary including all (variable) additional remuneration and pecuniary benefits received by the employee. If a contractual relationship between the customer and the employee is concluded within a period of six months after the last assignment, it shall be presumed that the conclusion is based on our mediation. A transfer within the meaning of this Clause 19.3 shall be deemed to have been made if a service or employment contract or comparable contract, such as a cooperation agreement, partnership agreement or accommodation agreement, is concluded between the customer and the employee or between a company affiliated with the customer (in particular pursuant to §§ 15 et seq. of the German Stock Corporation Act (AktG) or contractually affiliated) and the employee or a person closely associated with the customer (in particular persons pursuant to § 138 of the German Insolvency Act (InsO)) and the employee. The brokerage fee is due for payment upon conclusion of the contract (signature, start of contract at the latest)..
19.4 The Customer shall inform C&C about all intended and concluded contracts
20 Termination, Breakup Fee
20.1 The Customer is additionally entitled to terminate an order with two (2) weeks' notice. In addition, the Customer shall be entitled to release C&C from further services upon continued payment of the remuneration until the termination date. In the event of termination pursuant to this Section 20.1, the Customer shall, in addition to the remuneration due to C&C, pay a "Breakup Fee of minimum €5.000" due immediately upon termination in the amount of 15% of the total remuneration owed under the terminated individual Order, but not more than the remuneration owed for the outstanding Services.
20.2 C&C is additionally entitled to terminate an order with two (2) weeks' notice if the Customer fails to comply with its obligations to cooperate and thus jeopardizes the success of the project. Furthermore, C&C may terminate an order without notice if a key employee involved in the project is absent due to illness and no adequate replacement is available.
Modules A and C of these GTC apply to the placement of personnel by C&C to or for the benefit of the customer.
22 Information obligations
22.1 In order to carry out this personnel placement, C&C shall be provided by the customer with all necessary information required to fill the position. C&C will treat this information confidentially and only use it within the scope of the specific personnel placement order. After termination of this contract, the respective data will be deleted and the documents which C&C has received from the Customer will be returned.
22.2 Th The customer undertakes not to use the data and information provided to him for purposes other than those for which they were intended or to pass them on to third parties.
22.3 The parties mutually undertake to comply with the statutory provisions on data protection and shall ensure compliance therewith. The above obligations shall continue to apply after termination of the order..
22.4 If an applicant presented by C&C has already applied to the Customer at an earlier point in time or in parallel, the Customer is obliged to inform C&C of this within three (3) working days. In this case, C&C shall not provide any further services with regard to this applicant. However, Customer may instruct C&C to continue to perform services with respect to such applicant as well. If the Customer does not inform C&C within three (3) working days about the earlier or parallel application of the presented applicant, the Customer shall be liable for the damage incurred by C&C due to the fact that C&C has continued to work for lack of timely notification.
23 Remuneration, application costs, contractual penalty
23.1 C&C's claim to a brokerage fee shall be established exclusively upon successful conclusion (signature, commencement of contract at the latest) of a valid service or employment contract or comparable contract, such as a cooperation agreement, partnership agreement or accommodation agreement between the Customer and the Applicant or between a company affiliated with the Customer (in particular pursuant to §§ 15 et seq. of the German Stock Corporation Act (AktG) or contractually affiliated) and the Applicant or a person related to the Customer (in particular persons pursuant to § 138 of the German Insolvency Act (InsO)) (hereinafter uniformly referred to as "Main Contract").
23.2 The Customer undertakes to notify C&C in writing (copy of the employment contract) of the conclusion of a main contract within five (5) days of signing the contract. For each case of violation of this information obligation, a lump-sum contractual penalty of EUR 5,000.00 is agreed in addition to the remuneration incurred for the mediation. Notwithstanding the contractual penalty, C&C may claim the actual damage incurred, in which case the contractual penalty will be offset.
23.3 If a main contract is concluded after submission of the personnel profile, it is irrefutably presumed that this was done on the initiative of C&C's activities.
23.4 It is irrelevant for the accrual of the claim to remuneration whether the applicant actually possesses the qualifications described in the job profile. If the main contract is concluded on terms other than those offered or if it is concluded with another applicant proposed and/or assessed by C&C or if an applicant is designated for a position that deviates from the job description, this shall also not affect the accrual of C&C's claim to remuneration.
23.5 A non-performance-related claim to remuneration, e.g. only for services rendered in connection with recruitment, only arises in favour of C&C if this has been specifically agreed in the order.
23.6 If either party terminates the main contract prior to commencement of work or if the candidate does not commence work, C&C's claim to the fee and to reimbursement of costs from all other agreed and performed services shall nevertheless remain in effect.
23.7 Costs incurred by applicants in connection with interviews at C&C or at the Customer's premises shall be reimbursed by the Customer upon the applicant's request in accordance with the statutory provisions.
24 Warranty, liability
24.1 The information provided by C&C about an applicant is based on the information provided by the applicant themself or on information provided by third parties. Therefore, C&C cannot assume any liability for the correctness and completeness of the information.
24.2 C&C takes no liability for the personal, physical, characteristic nor professional suitability of an applicant.
24.3 C&C does not employment guarantee and does not guarantee that the candidate will meet the expectations set by the customer or achieve certain work result. A warranty for the work of the placed candidate is excluded.
24.4 If a claim is made against C&C by an applicant due to violations of the GTC for which the Customer is responsible, the Customer shall indemnify C&C in this respect against all claims including legal costs.
25.1 A A contract for personnel placement may be terminated at any time by either party without notice and without cause.
25.2 If a service or employment relationship is established between the customer and a candidate proposed by C&C within 6 months after termination of the recruitment contract, the fee shall nevertheless be due in full. The costs incurred up to the time of termination from all other services agreed upon and rendered shall also be reimbursed to C&C without deduction; this exclusively applies to advertisements already commissioned but not yet published.
Cremanski & Company GmbH Office
Linienstrasse 145, 10115 Berlin
+49 30 31192557