Terms & Conditions

General Terms and Conditions of Business of xC Consultants GmbH

  1. General
    1. The following General Terms and Conditions of Business apply to all contracts for consultancy services and other services of xC Consultants GmbH, Willy-Messerschmitt-Strasse 1, 82021 Taufkirchen (hereinafter also “xC Consultants”), towards its customers and contracting parties (hereinafter “Client”). They shall also apply as amended as a framework agreement for further contracts for consultancy and services with the same client without xC Consultants having to make reference to them again in the individual case; xC Consultants shall inform the client of changes to the General Terms and Conditions of Business without delay in such a case.
    2. Clients’ deviating directives shall only apply if xC Consultants has approved them in writing. This requirement of approval shall apply in any case, for example also if xC Consultants renders services without reservation despite knowledge of the client’s T&Cs. Agreements made with the client in the individual case (also side-agreements, addenda and amendments) shall also prevail over the present General Terms and Conditions of Business. A written contract or a written confirmation from xC Consultants shall be decisive for the contents of such agreements. Declarations and notifications of legal essence to be made to xC Consultants by the client following conclusion of the contract (e.g. setting periods of time, reminders, declaration of withdrawal) shall require textual form in order to take effect.
    3. Vicarious agents and representatives of xC Consultants have not been authorised to make oral side-agreements. To the extent that they nevertheless make oral additional agreements or give assurances exceeding the written service agreement, they shall always require written confirmation from xC Consultants in order to take effect.
  2. Services by xC Consultants
    1. The client shall commission xC Consultants with the rendering of services in the field of business administration consultancy, in particular in the areas of strategic planning and development, in separate agreements (hereinafter: commission).
    2. The precise contents of the services to be rendered shall result from the order confirmation and, if applicable, the annexes thereto. All the documents stated shall be integral parts of the contract originating between the parties.
  3. Commissioning
    1. Quotations from xC Consultants shall be subject to change without notice and non-binding. This shall also apply if xC Consultants has provided the client with concepts, pitches, catalogues, documentations (e.g. diagrams, plans, computations, calculations) or papers – also in an electronic form -, to which xC Consultants reserves ownership and copyrights. Such documents are only entrusted for the purposes of the quotation in question and may not be reproduced, even in extracts, or made accessible to third parties without express consent from xC Consultants. This shall in particular apply to documents marked as “confidential”; the Client shall require express, written consent from xC Consultants before forwarding them to third parties.
    2. To the extent that xC Consultants has made a quotation to a client and to the extent not agreed to the contrary, xC Consultants shall be bound to the quotation for a period of 10 days from submission. In individual cases, a longer period of binding can also be agreed.
    3. A service contract and other agreements shall in any case only originate as a result of the order confirmation from xC Consultants in written form or by e-mail or by fax. The documents belonging to the quotation such as concepts, pitches, illustrations, diagrams are only approximately decisive if not expressly agreed to the contrary.
  4. Performance of commissions, change requests
    1. xC Consultants shall organise the services regulated in the commission in question itself and under its own responsibility. To the extent not stipulated bindingly in the commission, xC Consultants shall determine the nature, sequence and arrangement of the work, in particular also the number of assistants possibly to be used by it, independently.
    2. xC Consultants undertakes to perform each commission in accordance with the principles of proper exercising of the profession and according to the latest state of the art in the sense of a purposeful and economical solution.
    3. xC Consultants shall be obliged to document performance of each commission to a suitable extent. The contents and the scope of the documentation can be specified in more detail in the commission. At the end of each commission at the latest, xC Consultants shall provide the documentation to the client together with the further work results.
    4. The client can request changes to the contents and the scope of the services. This shall not apply to services which have already been rendered. If the changes are not only inconsiderable, xC Consultants shall determine the delays in time and the additional expenditure resulting from the requested changes and the parties shall agree on a matching adaptation of the contract. If the parties cannot come to an agreement, xC Consultants shall be entitled to reject the change request. Additional remunerations for changes to the services for which the client is not answerable cannot be claimed by xC Consultants. All changes to the services shall be regulated before the start of performance in a written additional agreement, in which the additional remuneration and all and any changes in the sequence of time are to be recorded.
  5. Deadlines
    1. The deadline for the rendering of the services shall be agreed individually or stated by xC Consultants in the order confirmation, as the case may be. Compliance with the deadline by xC Consultants shall presuppose fulfilment of the contractual duties by the client. Deadlines stated by xC Consultants shall be non-binding statements, even in the event of written notification. Expiry of certain deadlines shall not release the client from the duty to set a suitable period of grace for the rendering of the service and the declaration that it will reject the service after the expiry of the period. This shall not apply to the extent that xC Consultants has expressly designated a period or a deadline in writing as a so-called “binding deadline”. xC Consultants shall inform the client about foreseeable delays or a threatening exceeding of deadlines to the extent that they become recognisable for it.
    2. To the extent that xC Consultants cannot comply with binding deadlines for reasons for which it is not answerable (incidents of force majeure), xC Consultants shall inform the client about this without delay and, at the same time, notify the prospective new deadline. If the service is also not available within the new period, xC Consultants shall be entitled to withdraw from the contract partly or totally; xC Consultants shall reimburse any consideration already paid by the client without delay. The client’s rights of termination according to § 12 shall remain unaffected.
    3. Occurrence of arrears in performance shall be based on the statutory directives. In any case, however, a caution from the client shall be necessary.
    4. If xC Consultants owes the production of a work in an exceptional case (work contract), the client shall be obliged to accept the work without delay following completion, to the extent that an acceptance has not obviously been ruled out in accordance with the properties of the work. xC Consultants can set a suitable period for the acceptance by the client. An acceptance record to be signed by both parties shall be produced. Acceptance shall be deemed tacitly granted if the result of the work is already in use before said point in time without essential complaints. Acceptance cannot be rejected on account of inconsiderable defects. The fact that the client does not accept the work within a suitable period set for it by xC Consultants, although it is obliged to do so, shall be equated to acceptance.
  6. Cooperation duties
    1. In the quotation, the client shall, if applicable, name a contact partner who is responsible for all questions within the framework of the performance of this commission.
    2. The client undertakes to support the activity of xC Consultants to a suitable extent and to provide the essential data, documents, information and templates essential for the rendering of the service according to the commission in good time. The contents and the scope of the necessary cooperation can be specified in the commission. The client shall inform xC Consultants without delay about all circumstances which may occur in the course of the performance and may influence the processing.
    3. To the extent that the client provides xC Consultants with templates for use within the framework of the commission, it assures that it is entitled to provide and to use said templates. The client shall indemnify and defend xC Consultants in this regard at its own expense for all claims by third parties or liability.
    4. The client shall notify xC Consultants within a suitable period of time, as a rule no more than five working days, whether it accepts or rejects a proposal made by xC Consultants for the organisation and implementation of a commission.
  7. Remuneration
    1. For the agreed services, xC Consultants shall receive a lump-sum remuneration or a remuneration on a hourly or daily rate basis at the terms and conditions stipulated in the order confirmation in question.
    2. To the extent not agreed to the contrary in the individual case, e.g. by matching milestones, the invoices from xC Consultants shall be due for payment as follows for lump-sum remunerations:
        30% of the total remuneration immediately, no later than 8 days after commissioning,
        70% of the total remuneration no later than 8 days after completion of the commission.
    3. Invoices from xC Consultants on an hourly or daily rate basis shall be due for payment without deduction within 8 days of the invoice date.
    4. Invoices can also be transmitted by e-mail. In the event of arrears in payment, the statutory regulations shall apply.
    5. All fees shall be understood net exclusive of 19% value added tax, which xC Consultants shall state separately on its invoices.
  8. Protection of intellectual property, use rights
    1. Copyrights to the services created by xC Consultants and its employees and third parties used (in particular quotations, reports, analyses, concepts, assessments, calculations, diagrams etc.) shall remain with xC Consultants.
    2. They may be used by the client during and following the end of the contractual relationship exclusively for the purposes covered by the commission in question. The client shall not be entitled to reproduce and/or to propagate the services without the express consent of xC Consultants. Under no circumstances shall a liability of xC Consultants towards third parties, for example for the correctness of the service, originate by an unjustified reproduction/propagation of the service.
    3. A breach of the above directives by the client shall entitle xC Consultants to immediate premature ending of the contract and to making other statutory claims, in particular for omission and/or damages.
  9. Warranty
    1. Without regard for culpability, xC Consultants shall be entitled and obliged to remedy incorrectness and defects in its service which become known. It shall be obliged to inform the client about this without delay.
    2. xC Consultants shall fulfil its duties to performance of the individual commissions to the best of its knowledge and belief. However, it shall be dependent on the client’s cooperation pursuant to § 6, subsection 2, with a view to the correctness, completeness and truthfulness of the contents.
  10. Liability
    1. In cases of malice aforethought or gross negligence, xC Consultants’ liability shall be based on the statutory provisions. Apart from this, liability of xC Consultants has been limited to slightly negligent breaches of essential duties (duties, breaching of which jeopardises achievement of the contractual purpose) and a breach of cardinal duties (duties, fulfilment of which in fact only makes the proper performance of the contract possible and in compliance with which the client regularly trusts), albeit in each case only for the foreseeable damage typical for the contract. xC Consultants shall not be liable for slightly negligent breaches of duties other than the aforementioned.
    2. The limitations of liability in the above subsection shall not apply in the event of injury of life, limb and health, for a defect following assumption of a guarantee for the properties of the products and in the event of deceitful failure to disclose defects. Liability according to the German Product Liability Act shall remain unaffected.
    3. If the liability of xC Consultants has been ruled out or limited, this shall likewise apply to the personal liability of xC Consultants’ employees, representatives and vicarious agents.
  11. Non-disclosure and data protection
    1. “Confidential Information” shall be all information and documents becoming known to the other party concerning business procedures of the other party in question, in particular, but not limited to printed documents, figures, diagrams, pictures, drawings, data media and other documents containing material protected by copyright. Both parties undertake to maintain secrecy concerning Confidential Information affecting the other party and only to use it for the performance of the commission and the purpose pursued by it. The non-disclosure duty shall apply for an unlimited time following the term of the commission.
    2. Both parties undertake to impose the non-disclosure duty on all employees and/or third parties (e.g. suppliers, graphic designers, printing companies etc.) who have access to the aforementioned business processes. This obligation shall also survive the ending of the commission.
    3. The non-disclosure duty according to subsection 1 shall not apply to information
        a) already known to the other party upon commissioning,
        b) already published at the time of forwarding without this being ascribed to a breach of non-disclosure by the other party,
        c) expressly approved in writing by the other party for forwarding,
        d) which the other party has legally acquired from other sources without the limitation affecting confidentiality, insofar as the forwarding and exploitation of this Confidential Information breaches neither contractual agreements nor statutory directives nor official orders,
        e) which the other party has developed itself without access to the Confidential Information,
        f) which has to be disclosed on the basis of statutory information, notification and/or publication duties. To the extent admissible, the party obligated hereto shall inform the other party about this as early as possible and support it as well as possible in proceeding against the duty to disclosure.
    4. The client approves the contents of the commissions and the services rendered within the framework of these commissions being stored electronically and processed by xC Consultants observing the provisions of data protection. The parties undertake not to forward any electronically stored or other data to third parties unless they are obliged to do so by law. Recording, processing and use of the personal data by xC Consultants shall be done observing the Federal Data Protection Act and the German Telemedia Act.
  12. Premature ending of commissions
    1. xC Consultants and the client can end individual orders prematurely if
        a) a period of notice has been agreed in the commission in question;
        b) in the cases of § 5, subsection 2,
          c) good and sufficient reason exists. Good and sufficient reason for termination without notice by xC Consultants shall in particular exist if
          – facts become known arousing serious doubts about the client’s ability to pay with a view to the rendering of the contractual services and the client cannot remedy these doubts within a period of 7 days following a written request by xC Consultants,
        – the client falls into arrears with the payment of an invoice for more than 60 days.
    2. Any notice shall require textual form.
  13. Right of retention and archiving of documents
    1. Until complete settlement of its claims, xC Consultants shall have a right of retention to the documents provided to it. After settlement of the claims from the contract, xC Consultants shall return all documents which the client or a third party has provided to it on the occasion of the performance of the commission. This shall not apply to the correspondence between the parties and simple copies of the reports, organisational plans, diagrams, lists, calculations etc. produced within the framework of the commission provided the client has received the originals.
  14. Final provisions
    1. If a provision of the General Terms and Conditions of Business is or becomes ineffective, the validity of the remainder of the contract shall not be affected.
    2. The place of jurisdiction is Taufkirchen. xC Consultants shall also be entitled to sue the client at its registered office.
    3. The business relations between xC Consultants and the client shall be governed by the law of the Federal Republic of Germany. Validity of international standardised law, in particular UN purchase law, has been ruled out.

Date: February 2017