GENERAL TERMS AND CONDITIONS

O V E R V I E W

1. General regulations
2. Services rendered, scope and scope of validity
3. Duty of cooperation
4. Delivery and payment deadlines
5. Offers and confirmation of order
6. Remuneration, payment, payment conditions, assignment, settlement
7. Retention of title
8. Intellectual property
9. Granting of rights
10. Liability for and rectification of faults and warranty
11. Cancellation, premature termination of the contract, confidentiality obligation
12. Limitation of liability
13. Data protection Non-disclosure
14. Solicitation, appointment by third parties
15. Final provisions

1. General regulations

• These general terms and conditions (also referred to below as “GTCs”) apply exclusively to all contracts concluded and to agreements with customers, suppliers and business partners.
• These GTCs are an integral part of agreements and contracts, the objective of which consists of the provision of advice, support or guidance, or the participation of clients, customers, suppliers or business partners through FINEXCON GmbH (referred to below as FINEXCON).
• A standardised reference to the individual general terms and conditions of customers, suppliers and business partners is hereby expressly rejected. The general terms and conditions of customers, suppliers and business partners only apply if FINEXCON has issued its express approval thereof.
• In the case of silence regarding the conditions of the customer, supplier of business partner, the shipment of a delivery or other business transactions, no approval is provided for the general terms and conditions, even if FINEXCON is familiar with them. On the contrary, the available GTCs also apply.
• If the customer, supplier or business partner is not in agreement with the non-binding nature of their general terms and conditions, then they must provide notification of such immediately in writing, and, if necessary, postpone their order or other business transactions until a corresponding agreement has been reached. In this case, FINEXCON is able to cancel the agreement and/or the contract without this resulting in any claims on the part of the customer, supplier or business partner.
• The FINEXCON GTCs also apply in their otherwise valid form to future business with customers, suppliers and business partners. FINEXCON will provide the latest version of the conditions of delivery to the customer, supplier or business partner upon request.

2. Services rendered, scope and scope of validity

• The objective of the company is the rendering of business services through the provision of advice, support and guidance to companies and natural persons through the development, structuring, organisation and implementation of strategic, operational and conceptual measures and/or projects in the fields of general management and company leadership, company organisation, financial management and accounting, human resources management, supply chain management, IT, purchasing, marketing, research and development, sales, administration and general oversight, financial services and financing, project and programme management as well as the management of holdings, investments and risk, event and presentations management, as well as the completion of training events, the publication of specialist and technical reports as well as business texts and research studies, the mediation, operation and management of networks and/or platforms, as well as company holdings and company phase management – particularly management services for new business start-ups and/or entrepreneurs.
• The business relationships between FINEXCON and customers, suppliers or business partners are exclusively subject to these GTCs.
• Any alternate conditions of business and agreements between FINEXCON and customers, suppliers or business partners are only valid insofar as they are confirmed in writing by FINEXCON as part of the agreements reached and contracts concluded. Otherwise, the validity of alternate or supplementary conditions of business on the part of the customer, supplier or business partner is excluded, even if FINEXCON does not provide its express rejection of such.
• These GTCs also apply to all subsequent orders and future business, even if no express agreement is provided for such.

3. Duty of cooperation

• The client provides for the appropriate organisational framework conditions for the fulfilment of the service order at their place of business and/or at the place of fulfilment which allow for and support the fulfilment of the order.
• The client ensures that FINEXCON receives all of the necessary documentation for the fulfilment and completion of the order in due time, and is notified of all processes and circumstances which are of relevance to the completion of the order. This also applies to all documents, processes and circumstances which first become known during the provision of the service.
• On an appropriate basis, the client will provide its relevant employees, service providers and any employee representation organisation (works council) with notification prior to the beginning of the collaboration and the provision of the service.
• The collaboration and/or fulfilment of the order between the client, customer, supplier or business partner and FINEXCON requires FINEXCON to receive full notification of previously completed and/or current services of other service providers – including in other specialist fields.
• If the customer, supplier or business partner fails to provide the documentation, information or documents required for the order in due time, then firstly, the agreed completion times are extended accordingly, and secondly, following a written request with an appropriate deadline and under the exclusion of all claims for compensation on the part of the customer, supplier or business partner, FINEXCON is entitled to withdraw from the contract. In this case, FINEXCON is entitled to keep any payments that have already been made and/or proportionate remuneration for any services already provided will be owed by the customer, supplier or business partner.

4. Delivery and payment deadlines

• FINEXCON undertakes every effort to comply with the agreed deadlines for the fulfilment (completion) as exactingly as possible.
• The intended fulfilment deadlines can only be met, however, if the client provides all of the necessary work and documents at the deadline stated by the agent in complete form, and fulfils the obligation to cooperate to the extent which is required.
• Delays to deliveries and cost increases which occur due to incorrect, incomplete or subsequently amended data and information and/or documentation or other which is provided, and which are not the fault of FINEXCON, are not the responsibility of FINEXCON and cannot lead to default. In this case, the client is liable for the payment of any additional costs that result.
• The client must issue payment reminders and deadlines in writing. These are non-binding insofar as they are not designated as binding.

5. Offers and confirmation of order

• The offers on the part of FINEXCON in brochures, advertisements and internet presentations are – including the prices – voluntary and non-binding. Details regarding deliveries and services are only provided following careful assessment, and are non-binding, insofar as they are not expressly designated as binding. FINEXCON is bound to binding offers for 10 days.
• The act of commissioning by the customer constitutes a binding contractual offer. FINEXCON is able to accept such a contractual offer within 10 days following its receipt. The acceptance takes place either in writing (with a confirmation of the order, for example), or with the signing of common agreement or a contract.
• If FINEXCON accepts the commissioning under express written supplementation or amendment, the principles of the commercial letter of confirmation shall apply. The customer is permitted to object in writing. Subsequent amendments or supplementations to a concluded contract on the part of the customers require the written confirmation of FINEXCON in order to be effective.
• FINEXCON is entitled to arrange for the service order to be completed in part or whole by its own employees, freelance employees or commercial and/or freelance cooperation partners.
• FINEXCON is entitled to avail itself of services provided by third parties. The client is only permitted to enter into and maintain direct contact with such third party partners with the prior approval of FINEXCON. The client accepts this regulation as being a key contractual obligation.

6. Remuneration, payment, payment conditions, assignment, settlement

• All prices are net prices and are quoted exclusive of the otherwise valid rate of value added tax. Insofar as FINEXCON provides the contractual services at a location of the customer, the travel and catering costs are to be reimbursed in accordance with the otherwise valid rates.
• The fees payable for services which are to be invoiced according to time outlay are based on an eight hour working day and five working days per week. Travel time is considered to be working time. The settlement occurs monthly on the basis of the actual work provided and/or the actual costs incurred.
• Unless other agreements are made, the client is liable for payment of the following costs: the costs of the accommodation and catering FINEXCON employees at the location of the project, the travel costs of the FINEXCON employees to and from the location of the project.
• Unless agreed otherwise, for fixed price orders, FINEXCON will issue an invoice in sum total of 50% of the order value following the issuing of the order. Following the end of the order, an invoice will be issued for the remaining 50%.
• The invoices are payable within 10 days following the date of invoice and without any discounts.
• If the customer is in default of payment for a duration of over four weeks, FINEXCON is entitled to cancel the contract without notice. FINEXCON reserves the right to make claims for compensation and other legal claims.
• Subsequent to the due date, FINEXCON is entitled to charge reminder costs at an appropriate level as well as default interest in total of 5% above the corresponding basic rate of interest. Receipt of the credit entry in a FINEXCON bank account is considered to be authoritative for the timeliness of the payment.
• The offsetting or asserting of rights of retention regarding outstanding receivables is not permitted. As a rule, the customer is only entitled to exercise offsetting rights if its counter-claims are found to be legally valid, undisputed, or they are acknowledged by FINEXCON.
• If FINEXCON becomes aware of circumstances which bring the creditworthiness of the client into questions, FINEXCON is entitled to demand due payment of the entire sum that remains outstanding. In this case, FINEXCON is also entitled to only complete outstanding services against advance payment or collateral and/or to demand collateral for outstanding payments.
• FINEXCON is entitled to assign, pledge or arrange for receivables to be collected by third parties without the prior approval of the client.
• The client shall only assign their rights from the collaboration with FINEXCON to third parties with the prior written agreement of FINEXCON; in this respect, § 354 a HGB (German Commercial Code) remains unaffected. Otherwise, an assigning of claims from this contract is not permitted.

7. Retention of title

• The goods and/or the service remain the property of FINEXCON until the full compensation of the liabilities of the customer, supplier or business partner from the contract as well as other receivables from the business relationship.
• A pledging or chattel mortgaging is not permitted.
• In the event of default of payment on the part of the customer, FINEXCON is entitled to demand the surrender of the conditional goods and/or the service without withdrawing from the contract and without the requirement for the setting of a deadline.
• After accepting the return of the goods, FINEXCON is entitled to make use of them freely in the customary way. The proceeds from the sale, minus the selling costs incurred, will be offset against the liabilities of the customer.

8. Intellectual property

• Customers, suppliers or business partners are obliged to ensure that all of the information, documentation, documents, data and similar created by their employees and cooperation partners in the course of the collaboration and/or the contracting of FINEXCON are only used for contract purposes.
• All of the information and data which FINEXCON provides to the customer, supplier or business partner in the scope of a contractual relationship and/or collaboration is to be handled confidentially.
• FINEXCON retains the copyright to its services.
• In view of the fact that the services provided are the intellectual property of FINEXCON, the right of use for them only applies to the actual purposes of the customer, supplier or business partner and only in the scope stated in the contract. The forwarding of these services and/or results of the services is excluded insofar as they are not necessary for the contractual relationship. Third parties to whom this data is forwarded must also abide by confidentiality.
• FINEXCON retains all copyright and rights of ownership for the documentation, files and other materials which FINEXCON gives to the customer, supplier of business partner in the scope of the business relationship. They may not be made accessible to third parties without written approval, and at the end of the business relationship, they are to be returned on an unsolicited basis or destroyed.
• The use of professional comments or statements of FINEXCON for advertising purposes by the customer, supplier or business partner is not permitted. An infringement entitles FINEXCON to the cancellation of all services not yet carried out without notice.
• The forwarding of professional comments or statements of FINEXCON of any kind either free of charge or against payment requires the written agreement of FINEXCON under all circumstances. This does not provide justification for the liability of FINEXCON towards a third party.

9. Granting of rights

• FINEXCON undertakes every effort to ensure services are free from rights, particularly third party rights. An exemption from the claims of third parties or of legal costs does not, however, take place.
• In the scope of the existing data protection regulations, FINEXCON is authorised to save and to process personal data of the customer, supplier or business partner.
• FINEXCON is authorised to nominate customers, suppliers and business partners as references and to use the corresponding for advertising purposes.

10. Liability for and rectification of defects and warranty

• Claims of the customer due to defects to the services are oriented to the legal regulations. The customer must assert claims for defects towards FINEXCON immediately subsequent to the discovery of the defect in writing. The period of limitation for the claims for defects made by the client is one year subsequent to the provision of the appropriate service, unless a longer period of limitation applies according to § 438 para. 1 and para. 3 of the BGB (German Civil Code).
• If, under exceptional circumstances, the service to be provided by FINEXCON is an industrial service, then in the case of defects, the customer is able to claim for non-fulfilment. Subsequent to non-fulfilment, the customer is entitled to the legal rights. The customer must assert claims for defects towards FINEXCON immediately subsequent to the discovery of the defect in writing. The claims for defects shall lapse 12 months following the provision of the corresponding industrial service.
• In the event of the failure to rectify possible faults, the client is able to claim a discount on the invoiced sum or – if the service is justifiably no longer of interest to the client following the failure of the rectification – the right to rescind the contract.
• If FINEXCON is unable to provide the services for the customer either in part or in whole for reasons which are beyond the control of FINEXCON, then FINEXCON has the right to withdraw from the contract. In this case, an obligation to pay compensation does not apply to FINEXCON.
• All claims on the part of the client lapse within six months. In the case of warranty claims and claims for compensation, insofar as these are not excluded due to the lack of a timely notification, the period of limitation starts with the provision of the service to the client.

11. Premature termination of the contract, confidentiality obligation

• Customers, suppliers or business partners, as well as FINEXCON, are only entitled to cancel the contract prior to the provision of the agreed service for a serious reason.
• If the contractual relationships end prematurely for any reason, FINEXCON has the right to claim payment for the proportional work it has provided.
• If the premature solution is due to contractual relationships of the client, in addition to the payment stated under the previous clause, FINEXCON will also receive a fixed sum of compensation in total of 25% of the agreed fee for the not yet completed services, under reservation of further claims by FINEXCON.
• Each party is entitled to cancellation without notice if the other party infringes its key contractual obligations.
• Each party is entitled to cancellation without notice if:
  • the customer is unable to pay,
  • the opening of insolvency proceedings regarding the assets of the customer,
  • the customer is in default of payment,
  • the customer is in default with the assumption of services of FINEXCON, or
  • the customer fails to fulfil their contractual obligations to cooperate.
• In the case of the cancellation, FINEXCON is entitled to end the provision of the services owing, to stop using employees, service providers, equipment, facilities and materials at the customer, and to end the use of programmes and applications.
• Following the end of the collaboration and upon the request of FINEXCON, which can take place at any time without the provision of any reasons, the customer, supplier or business partner must return the confidential information or data gained on the basis of the confidential information within a reasonable period, or to hand it over, destroy it or permanently delete it, unless the customer, supplier or business partner is legally obliged to retain custody of it. Cases of destruction or deletion are to be confirmed to FINEXCON in writing.
• The existing confidentiality obligations do not end upon the ending of the contract and/or the collaboration, but remain valid beyond it.

12. Limitation of liability

• The legal liability of FINEXCON is limited.
• Irrespective of the legal reason, FINEXCON is only liable according to the following provisions of the GTCs. The liability of FINEXCON for the payment of compensation – without taking the legal nature of the asserted claim into account, and also subsequent to the completion of a possible period set for its performance – is excluded.
• During the completion of the services, FINEXCON operates according to the generally recognised principles of professional practice. FINEXCON is only liable for damage in proven cases of intent or gross negligence, and only in the scope of the legal provisions.
• In particular, FINEXCON is not liable for lost profits, a failure to make savings, losses due to third party claims, or any other indirect consequential damage. FINEXCON does not accept generalised, flat rate, or no-fault liability compensation arrangements.
• Claims for compensation on the part of the customer due to default or the impossibility of the services of FINEXCON are limited to the value of the specific part of the service which cannot be used as intended by the contract due to the impossibility and/or default.
• The aforementioned limitation of liability does not apply in cases of legal liability, in cases of the assumption of a warranty, or in cases of culpably caused personal injuries.
• FINEXCON is only liable for slight negligence to the extent that key obligations, i.e. undertakings, the fulfilment of which are required so as to enable the correct completion of the contract, and the compliance with which the customer generally places and is entitled to place its trust, are infringed. In the case of the infringement of such obligations, the liability of FINEXCON is limited to damages that could typically be foreseen due to the nature of the relevant contractual relationship. In general, the liability for slight negligence is excluded. FINEXCON is not liable for the slightly negligent infringement of non-material contractual obligations.
• FINEXCON accepts no warranty for the suitability of temporarily contracted employees, staff who are provided in the scope of a staff leasing arrangement, freelance employees or other temporarily contracted service providers. The customer is responsible for the suitability test.
• If the activity is carried out with the involvement of a third party and the client is notified of such accordingly, any warranty and liability claims that arise against the third party as per the law and the conditions of the third party are deemed to be assigned to the client.
• The customer, supplier or business partner is obliged to take the appropriate steps to prevent and minimise damage.

13. Data protection, confidentiality

• FINEXCON undertakes to maintain confidentiality towards the customer regarding all of the information that becomes known within the scope of the contractual relationship. The customer, supplier of business partner also undertakes to maintain confidentiality regarding all of the information, circumstances and processes of FINEXCON that become known to them within the scope of the contractual relationship.
• All FINEXCON employees are contractually obliged to maintain confidentiality about all of the confidential data, circumstances and processes of the customer, and to maintain data secrecy according to § of the German Federal Data Protection Act (BDSG).
• The obligation to maintain confidentiality also applies to the time following the ending of the order and/or the collaboration. This does not include cases in which there is a legal obligation to provide information.
• The customer declared their agreement that the personal data of FINEXCON which they receive in the scope of the business relationship can be saved and processed.

14. Solicitation, appointment by third parties

• Within a period of 12 months starting from the issuing of the order to 12 months following the completion of the order, the client will not appoint any FINEXCON employees to work at their company, or employ them at their company in any other way or at a dependent company. If the client infringes this arrangement, they must pay FINEXCON a fixed sum of compensation in total of the annual salary of the employee.
• The customer is not entitled to forward knowledge, documents or other information about persons who are introduced by FINEXCON to third parties, or to introduce such persons to third parties, without the prior written agreement of FINEXCON. In this case, a “third party” is every other natural or legal person, including companies who are associated with the customer according to § 15 AktG (German Stock Corporation Act).
• If the customer introduces a person, or makes them known to a third party, who has originally introduced to them by FINEXCON and/or worked for them through FINEXCON, the customer is obliged to pay FINEXCON a fixed sum of compensation in total of the annual salary of the employee.

15. Final provisions

• Amendments and supplementations to the contracts and agreements require the written form. Collateral agreements are only valid if confirmed in writing. This also applies to the waiving of the requirement for the written form.
• A contract replaces all previous agreements regarding its purpose.
• Should an individual provision of this contract or these GTCs become ineffective or subsequently lose its legal efficacy, the validity of the contract or the remaining provisions of these GTCs will remain unaffected. Rather, in the place of the ineffective provision, insofar as it is legally permitted, an alternative appropriate regulation will apply which, from the economic perspective, comes closest to the original agreement between the contractual parties, or the agreement they would have reached if they had been aware of the ineffective nature of the provision. This same applies to the filling of possible contractual gaps.
• The laws of the Federal Republic of Germany apply to the business relationships between FINEXCON and customers, suppliers or business partners.
• The place of fulfilment and the sole legal venue for all disputes that may arise from the contractual relationship is Munich. FINEXCON is entitled to take legal action against customers, suppliers and business partners at an alternative legal venue, however.