General Terms and Conditions of Business of Mammut Consulting GmbH
As of January 2013
§ 1 Scope of application
1. These General Terms and Conditions of Business apply to all contracts between Mammut Consulting GmbH and its clients. Conflicting or differing terms and conditions of business, contracting, and/or purchasing are not recognised unless their application is consented to in writing.
2. If individual contracts have also been made between the Contracting Parties, these take priority over the provisions of these General Terms and Conditions of Business. In such a case, these General Terms and Conditions of Business only apply as a supplement, if and insofar as the individual contract does not stipulate otherwise.
§ 2 Performances of Mammut
1. The Contracting Parties agree that Mammut Consulting GmbH only owes the performance of services, not the creation of a work or the bringing about of a particular result. The Contracting Parties further agree that nothing changes in Mammut Consulting GmbH’s obligation to perform, which exclusively has the character of a service contract, even if Mammut Consulting GmbH commits itself to recording in writing the results of its services and to preparing and delivering corresponding reports, studies, and the like. Such written reports, studies, and the like especially do not constitute expert opinions – unless explicitly agreed otherwise – but only describe the essential content of the process and the results of the services.
2. Mammut Consulting GmbH has the right to make use of expert third parties as subcontractors in order to execute the commission. The Contracting Parties further agree that Mammut Consulting GmbH does not owe and will not perform any activities constituting legal advice, tax advice, or activities of chartered accountants. If Mammut Consulting GmbH arranges the performance of such activities by engaging corresponding professionals, it shall act only as facilitator without itself becoming the liable party/contract partner for such activities.
3. The Contracting Parties agree that Mammut Consulting GmbH is not obligated to check information, data, or documents given to it verbally or in writing for factual or mathematical correctness, completeness, or compliance. If, however, Mammut Consulting GmbH recognises that the information, data, or documents given to it verbally or in writing are obviously incorrect, incomplete, or not in compliance, it will indicate as much.
4. The Client has a claim to removal of any defects. This claim must be asserted without delay. Mammut Consulting GmbH is to be given the opportunity to remedy the defect.
§ 3 Storage of documents
Mammut Consulting GmbH is no longer obligated to store the documents delivered to it for the purposes of rendering the services owed when three years have passed since the day the contractual relationship ended or when half a year has passed since a written request was sent to the Client to pick up the documents.
§ 4 Duty to cooperate
1. The Client is obligated to assist Mammut Consulting GmbH to the best of the Client’s ability, especially to deliver all information and documents necessary to execute the commission, and to bring about all prerequisites necessary for proper execution of the commission that fall within the Client’s sphere of operations.
2. The Client is further obligated to designate one or more persons for Mammut Consulting GmbH who are authorised to submit with binding effect upon the Client all declarations needed to perform the services owed.
§ 5 Data protection, data transmission
1. The Client agrees that the exchange of data and information in the cooperation with the Client and with all project participants can take place through unencrypted emails. If the Client wishes data not to be sent through unencrypted emails and email attachments, the Client will notify the Contractor hereof in writing, either for a specific case or in general. In this case, email attachments will be sent encrypted such that the Client can only open them with a password. For both data transmission from the Client to the Contractor and vice versa, should encryption be desired, encryption and decryption methods are to be used that can be applied using standard software (especially MS Office, Apple Mail) without additional installations.
2. Within the scope of its activities, Mammut Consulting GmbH has the right to automatically gather, process, and store personal data of the Client and the Client’s employees that is entrusted to Mammut Consulting GmbH, and – within the scope of the content of the commission – transmit it to a computer service centre or another appropriate third party for further order data processing if necessary. If third parties are engaged, Mammut Consulting GmbH must ensure that they are bound to secrecy.
3. The Client is aware that the content of unencrypted emails or their attachments may possibly be read by unauthorised third parties. Nevertheless, the Client declares agreement to communication and transmission of documents by unencrypted email. Should the Client desire a different communications technology, the Client will notify Mammut Consulting GmbH hereof.
§ 6 Rights to the work results
1. All copyrights or rights arising from supplementary protection of creations under competition law to all documents prepared by Mammut Consulting GmbH for the purposes of rendering the services owed are due exclusively to Mammut Consulting GmbH.
2. The use, reproduction, and publication of such documents prepared by Mammut Consulting GmbH for the purposes of rendering the services owed is only permitted to the Client for the Client’s own business for the purposes required by contract.
3. Disclosing the work results of Mammut Consulting GmbH to third parties requires the written consent of Mammut Consulting GmbH, unless consent to such disclosure already arises from the content of the commission.
§ 7 Right of retention
Mammut Consulting GmbH is entitled to a right of retention to the documents delivered to it by the Client for the purposes of rendering the services owed until complete fulfilment of its claims from the contractual relationship. This right of retention does not exist if it would inflict a disproportionate disadvantage on the Client even in consideration of Mammut Consulting GmbH’s interest in fulfilment.
§ 8 Compensation
1. If no differing regulation has been agreed upon, the usual compensation and reimbursement of expenses up to the usual amount are considered agreed.
2. Mammut Consulting GmbH has the right to invoice the work performed every 14 days after the beginning of the contractual relationship. The fee is due immediately upon invoicing.
3. Along with the fee claim pursuant to Paragraph 1, Mammut Consulting GmbH is also entitled to a claim to reimbursement of all expenditures and outlays made to render the services owed.
4. The Client may only declare set-off against the fee claim and the claim to reimbursement of expenses with claims that are undisputed or have been established without further legal recourse.
5. Value added tax will be calculated at the statutory rate in each case.
6. Multiple Clients for the same commission are jointly and severally liable for the compensation.
7. Upon payment of invoices of Mammut Consulting GmbH by the Client or by third parties commissioned by the Client, the claims asserted in the particular invoices are considered recognised. Claims to recovery are excluded.
8. Objections against invoices of Mammut Consulting GmbH are to be raised no later than within four weeks of receipt; later objections are excluded.
9. If the commission ends before full execution, Mammut Consulting GmbH will receive a portion of the compensation that corresponds to the extent of the activities performed up until the ending of the commission. If the commission is terminated prematurely for reasons for which the Client is responsible, Mammut Consulting GmbH additionally has a claim to 90% of the compensation it is owed for the period from the ending of the commission until the end of the agreed regular notice period. The Contracting Parties have the option of demonstrating lower or higher damages.
§ 9 Secrecy
Mammut Consulting GmbH undertakes to maintain silence about all facts that it becomes aware of in connection with the execution of the commission, unless the Client releases it from this obligation.
The obligation of secrecy does not exist if the disclosure is necessary to protect the justified interests of Mammut Consulting GmbH. Mammut Consulting GmbH is also released from the obligation of secrecy insofar as it is obligated to provide information and cooperation by the insurance conditions of its professional liability insurance.
The obligation of secrecy does not apply with respect to the bank providing credit to the Client.
§ 10 Haftung
The liability of Mammut Consulting GmbH for damages of the Client is excluded unless an intentional or grossly negligent breach of duty took place. In case of negligence, it is limited to EUR 250,000.00 per damage event. Mammut Consulting GmbH is, however, liable for damages caused by culpable harm to life, body, and health as well as for damages caused by culpable breach of essential contract duties (known as cardinal duties); for the latter, however, the liability is limited in case of ordinary negligence to the damages typical for the type of contract and foreseeable at the time when the contract started. Mammut Consulting GmbH is not liable for loss of production or lost profit suffered by the Client. Liability for the success or the attainment of specific goals of the Client is categorically excluded, unless it is explicitly agreed otherwise in writing.
§ 11 Limitation period
All claims of the Client arising from this contract against Mammut Consulting GmbH become statute-barred after 2 years. In a departure from this, the statutory period of limitation of 3 years applies if Mammut Consulting GmbH acted with intent.
§12 Termination of the contractual relationship
Unless agreed otherwise, the contractual relationship can be ordinarily terminated by both Contracting Parties with 14 days’ notice as of the end of a month. Any notice of termination must be in written form to be effective.
§ 13 End of the commission
Solely German law applies to all claims resulting from or in connection with this contractual relationship.
The place of jurisdiction is the registered office of Mammut Consulting GmbH. However, Mammut Consulting GmbH can also bring an action against the client at the clients place of general jurisdiction.
Any General Terms and Conditions of Business or Terms and Conditions of Purchasing of the Client do not become part of the contract.
Should individual provisions of these Terms and Conditions of Business be or become ineffective, this is not to affect the effectiveness of the remaining provisions. The Contracting Parties are then obligated to agree on a replacement regulation that comes as close as possible to the economic purpose of the ineffective clause.