General Terms and Conditions with customer information

1. Scope of appliance, contractual partners and definitions

1.1.     The following General Terms and Conditions (hereinafter "GTC") apply to all contracts between Nora Körber, NK Consult, Hergenhahnring 71a, 61250 Usingen, Deutschland, Tel.: +49 (0) 176 - 85960664, E-Mail: kontakt@koerbers.de, Internet: https://www.koerbers.de (hereinafter "Contractor") and the customers (hereinafter "Client", collectively also "Parties"). 

1.2.     If the Client uses conflicting or supplementary terms and consitions, their validity and inclusion is hereby objected to, unless otherwise agreed between the Parties. These GTC shall also apply exclusively if  the Contractor performs the services to the Client without special reservation in the knowledge that the Clients's terms and conditions conflict with or deviate from these GTC. 

1.2.     These GTC apply exclusively if the Client is an entrepreneur. According to §14 BGB, an entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of their commercial or independent professional activity. In contrast, a consumer pursuant to §13 BGB is any natural person who enters into a legal transaction for purposes that are predominantly outside his trade, business or profession. 

1.3.     Entrepreneurs within the meaning of these GTC are also public authorities, corporations, institutions, foundations, legal entities under public law or special funds under public law that act exclusively under private law when concluding a contract.

1.4.     The Contractor's services are aimed exclusively at entrepreneurs in accordance with section 1.3 of these GTC. The Contractor may therefore demand that the Client provides the Contractor with sufficient proof of its status as an entrepreneur before concluding the contract. This can be done, for example, by providing a VAT identification number of a member state of the European Union and proof of residence or other suitable proof of legitimacy (e.g. business registration, extract from the commercial register). The data required for the proof of identity must be provided by the Client completely and truthfully. 

1.5.     Unless otherwise agreed between the Parties, these GTC shall also apply as a framework agreement for similar future contracts in the version valid at the time of commissioning by the Client or in any case in the version last communicated to the Client in text form, without the Contractor having to refer to them again in each individual case. Individual framework agreements concluded in individual cases or other contracts with the Client (including side agreements, extensions and modifications) shall always take precedence and shall merely be supplemented by these GTC.

2. Subject matter of the contract

2.1.     This consultancy agreement is aimed at providing advice and comprehensive support to the Client in the field of information technology. (hereinafter referred to as “Services”).

2.2.     Responsibility for project management and the success of the project lies with the Client. 

2.3.     The services of the Contractor are services pursuant to §§ 611 ff. BGB. Contractual services (according to §631 BGB) are not the subject of the contract. 

2.4.     The Contractor also offers training courses on the services they provide. The content of the training courses shall be agreed separately between the Parties and shall be remunerated separately. Otherwise, training services are not the subject of this contract. 

3. Services and Obligations of the Contractor

3.1.     The Contractor offers their services both on site at the Client's premises and online (e.g. via online video conference or remote access). The content of the services can be found in the respective service description in the offer. 

3.2.     In the case of services provided on site at the Client's premises, the Contractor shall provide these at a location agreed between the Parties or at the Client's business premises in personal contact with the Client.

3.3.     In the case of online services, the Contractor shall provide their services exclusively in electronic form via online video conference or remote access using appropriate technical means. In particular, the Client requires a suitable end device and access to the internet as well as application software. The Contractor may use third-party services to provide the application software. The Client can find the system requirements in the respective service description in the Contractor's offer. The client is responsible for ensuring that the technical system requirements are met. The Contractor shall not be liable if the technical system requirements are not met or if the Client fails to meet them.

3.4.     The specific performance obligation, content and scope of the services to be provided by the Contractor shall be determined exclusively by the content of the offer in accordance with all information and explanations contained therein. 

3.5.     The Contractor is generally not authorized to act as a representative of the Client vis-à-vis third parties, in particular to conduct negotiations or make declarations of intent with effect for or against the Client. Exceptions require the prior written consent of the Client.

3.6.     The Contractor shall provide the services with the greatest possible care and diligence in accordance with the generally recognized rules of technology applicable at the time of conclusion of the contract. However, the Contractor does not owe any specific success. In particular, the Contractor does not guarantee that the Client will achieve a specific result or that the Client will achieve a specific performance target. This depends to no small extent on the personal commitment and will of the Client, over which the Contractor has no influence. 

3.7.     The Contractor is generally free to choose the place of performance. If the activity requires presence at a specific location, the Contractor shall be obliged to provide the service there. The Contractor shall be free to organize their working hours. However, the Contractor must coordinate with the Client's project manager to ensure cooperation between the Parties and compliance with deadlines.

3.8.     The Contractor shall inform the Client immediately in writing if they recognize or should have recognized obstacles or impairments that could have an impact on the performance of their services.

4. Personnel and subcontractors

The Contractor is not obliged to provide the services in person. The Contractor may provide their services using qualified personnel selected by them. They shall be entitled to engage third parties as subcontractors for the purpose of providing the object of performance. Unless otherwise stated in the Contractor's service description, the Client shall not be entitled to select a specific person for the performance of the services.

5. Conclusion of contract and contract language

5.1.     The Contractor's offers are subject to change and non-binding. Before passing on the offers and/or other documents to third parties, the Client requires the express written consent of the Contractor.

5.2.     The placing of an order for the services previously selected by the Client shall be deemed a binding contractual offer. Unless otherwise stated in the order, the Contractor shall be entitled to accept the Client's contractual offer within the reasonable acceptance period specified by the Contractor in the offer after receipt by the Contractor. 

5.3.     Acceptance shall be given either

• by the Contractor sending the Client a declaration of acceptance (e.g. by order confirmation) in writing or text form (e.g. by letter or e-mail), whereby the receipt of the declaration of acceptance by the Client is decisive in this respect, or
• by the Contractor requesting payment from the Client after the Client has placed the order, or
• by the Contractor starting to perform the commissioned services at the Client's request and notifying the Client of this. 

If several of the aforementioned alternatives exist, the contract is concluded at the point in time at which one of the aforementioned alternatives occurs first. The period for accepting the offer begins on the day after the offer is sent by the client. The period ends with the expiry of the reasonable acceptance period specified by the Contractor in the offer. If the Contractor does not accept the Client's offer within the aforementioned period, this shall be deemed a rejection of the offer with the consequence that the Client shall no longer be bound by its declaration of intent.

5.4.     The contract shall be concluded exclusively in German. 

5.5.     Insofar as the Parties have agreed special conditions, these shall not apply in principle to current and future contractual relationships with the Client.

6. Obligations of the client to cooperate

6.1.     The Client shall promote the services of the Contractor through appropriate acts of cooperation. In particular, it shall

• provide the Contractor with all necessary information and data 
• allow access to its premises and to its employees or subcontracotrs during normal business hours
• provide the necessary working materials, including workstations 
• grant access to its IT systems and/or databases 

insofar as these services do not contractually fall within the Contractor's scope of duties. Unless otherwise agreed in individual cases, all cooperation services shall be provided free of charge for the Contractor.

6.2.     Insofar as the Client provides the Contractor with information and data for use, it warrants that it is authorized to provide and use this information and data. The Contractor shall not be obliged to check the information and data provided by the Client, in particular not with regard to whether they are suitable for achieving the purpose pursued with the commissioned service.

6.3.     If the Client fails to comply with its aforementioned obligations to cooperate and the Contractor is therefore unable to provide their services in whole or in part within the agreed period, the agreed period shall be extended accordingly. Any additional expenses incurred and proven by the Contractor shall be remunerated separately on the basis of the agreed conditions, without affecting any further rights of the Contractor.

6.4.     The Client shall appoint a contact person (“project manager”) and a deputy as permanent contact persons for all matters relating to the project. They shall be put in a position to either make all decisions relating to the project themselves or to bring them about promptly. The client shall also make available those employees whose special knowledge is necessary for the realization of the project.

7. Remuneration and terms of payment

7.1.     The Contractor's services shall be remunerated on a time and material basis, unless otherwise agreed between the Parties.

7.2.     Unless otherwise stated in the Contractor's offer, the remuneration shall be in EURO and is a net price plus the statutory value added tax applicable on the date of invoicing.

7.3.     In addition, the Contractor shall be entitled to reimbursement of the expenses necessary and proven for the performance of the services, including travel and accommodation costs. The amount of these expenses shall be specified in the Contractor's offer.

7.4.     The remuneration is due for payment 7 days net without discount after receipt of a proper and verifiable invoice. The receipt of the invoice amount in the Contractor's business account shall be decisive for the timeliness of payment. 

7.5.     The remuneration shall cover all remuneration claims of the Contractor in connection with the provision of the contractual services, in particular the provision of the work and the granting of rights in accordance with Section 8 of this contract.

7.6.     Unless otherwise agreed between the Parties, the services rendered shall be invoiced monthly in retrospect. The statement shall be accompanied by the relevant supporting documents. Activities and expenses not documented shall not be reimbursed by the Client. 

7.7.     The Client shall be in default upon expiry of the aforementioned payment deadline. The outstanding remuneration shall bear interest at the applicable statutory default interest rate during the period of default. The Contractor reserves the right to claim further damages caused by default (e.g. reasonable costs of necessary legal defense including all court and legal fees, costs for dunning procedures or debt collection). The Contractor's claim to commercial maturity interest against merchants (§353 HGB) shall remain unaffected. In the event of overdue claims, incoming payments by the Client shall first be offset against any costs and interest and then against the oldest claim. The Contractor shall be entitled to charge a fixed reminder fee of 5.- EUR. The Client reserves the right to prove that no or lower costs were incurred. 

7.8.     The Client shall only be entitled to set-off rights if its counterclaims have been legally established or are undisputed and are mutually linked to the Contractor's main claim or have been recognized by the Contractor. 

7.9.     The Client shall have no right of retention unless the Client's counterclaim arises from the same contractual relationship and is undisputed or has been legally established. Written notification to the Contractor is required to assert this right.

7.10.    If it becomes apparent after conclusion of the contract (e.g. through an application for the opening of insolvency proceedings) that the Contractor's claim to remuneration is jeopardized by the Client's inability to pay, the Contractor shall be entitled to refuse performance in accordance with the statutory regulations and - if necessary after setting a deadline - to withdraw from the contract (§321 BGB).

8. Granting of rights for work results

8.1.     “Work results” are all reports produced by the Contractor's activities under this contract, in particular lists, calculations, documentation, documents, drafts, project outlines, presentations as well as source codes and software design.

8.2.     Upon full payment, the Contractor shall grant the Client the temporally and geographically unlimited, irrevocable, exclusive and non-sublicensable right to use the work results only for the contractually agreed purposes. The work results may only be reproduced, distributed, utilized, edited, translated, reprinted or passed on with the Contractor's prior consent. 

8.3.     The right to the work results pursuant to Section 8.2. also includes the right to use work results for companies affiliated with the Client.

9. Naming as reference customer 

9.1.     The Contractor shall be entitled to name the Client as a reference customer with the Client's prior written consent. The Client may refuse its consent at any time without stating reasons and may revoke consent once given. In the second case, the Contractor shall remain entitled to use advertising material that has already been created. 

9.2.     The information may also be provided online, for example on the Contractor's company website, including the presentation of the Client's company logo. For this purpose, the Client shall grant the Contractor a simple, non-transferable right of use, unlimited in time and space, with regard to the name and trademark rights required for this purpose.

10. Liability for damages

10.1.    With regard to the services provided by the Contractor, the Contractor, their legal representatives and vicarious agents shall be liable without limitation

• in the event of intent or gross negliegence;
• in the event of intentional or negligent injury to life, physical injury or health;
• in the case of warranty promises, insofar as this has been agreed between the Parties;
• insofar as the scope of application of the Product Liablity Act applies.

10.2.    In the event of a breach of essential contractual obligations, the Contractor's liability shall be limited to the foreseeable damage typical for the contract, unless unlimited liability applies in accordance with Section 10.1. Essential contractual obligations are those obligations which the contract imposes on the Contractor according to its content in order to achieve the purpose of the contract, the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the Client may regularly rely (so-called cardinal obligations.

10.3.   Any further liability of the Contractor is exluded.

11. Contract term and termination

11.1.    The contract shall commence upon conclusion of the contract. The contract term and notice period shall be agreed separately and individually between the parties and specified in the Contractor's offer. 

11.2.    The right of each contracting party to terminate the contract without notice for good cause shall remain unaffected. Good cause shall be deemed to exist if the terminating party cannot reasonably be expected to continue the contractual relationship until the agreed termination or until the expiry of a notice period, taking into account all circumstances of the individual case and weighing the interests of both parties. The Contractor shall be entitled to terminate the contract for good cause in particular if the Client fails to make due payments despite a reminder and a grace period. In any case, termination without notice requires that the other party be warned in writing and requested to remedy the alleged reason for termination without notice within a reasonable period of time.

11.3.   The contract may be terminated in writing or text form (e.g. by e-mail or letter).

11.4.    Services rendered up to the effective date of termination shall be remunerated; in the event of extraordinary termination by the Client culpably caused by the Contractor, this shall only apply insofar as the services rendered are usable for the Client.

12. Confidentiality and data protection

12.1.    The Parties agree to treat as confidential all business secrets and other information of the other party designated or marked as confidential (hereinafter “confidential information”), in particular information, data, ideas, concepts and business models, methods and know-how, made accessible within the scope of this contract. This also applies to information whose confidentiality arises from the circumstances, irrespective of whether it has been communicated in written, electronic, embodied or oral form. The receiving party shall treat the confidential information with the same care as it treats its own confidential information of the same sensitivity, but at least with the care of a diligent businessman.

12.2.    Confidential information may only be utilized, passed on to third parties or otherwise used for the contractual provision of services and only with the prior written consent of the other party. Otherwise, the utilization, disclosure to third parties or other use of confidential information is excluded, unless the respective party is legally entitled or obliged to disclose and pass on confidential information. To the extent permitted by law, the authorized or obligated party shall inform the other party before disclosing confidential information. No third parties within the meaning of this paragraph are affiliated companies of the Parties and consultants who are obliged by law to maintain confidentiality.

12.3.    The Parties shall impose the confidentiality obligation on all employees, (freelance) staff or third parties to whom confidential information is passed on and disclosed, with the proviso that the confidentiality obligation shall continue to apply beyond the end of the respective service or employment relationship, unless a corresponding general obligation to maintain confidentiality already exists. 

12.4.    Excluded from the obligation of confidentiality is confidential information

12.4.1. which was already generally known when the contract was concluded or subsequently became generally known without breaching the confidentiality obligation;

12.4.2. which the other party has developed itself, independently of this contract or the party concerned;

12.4.3. which the other party has received from third parties or outside this contract from the party concerned without an obligation of confidentiality; or

12.4.4. which may or must be disclosed by law or by order of an authority or court. To the extent permissible, the party entitled or obliged to do so shall inform the other party of this in good time and support it to the best of its ability in taking action against the obligation to disclose.

The responsibility for proving the existence of the aforementioned exception lies with the party invoking the exception.

12.5.    The Parties shall surrender the confidential information in their possession to the other party or irretrievably destroy the confidential information upon request after termination of the contract. This does not apply to confidential information for which there is a longer statutory retention obligation and data backups as part of standard backup processes, provided that their release or destruction would only be possible with disproportionate effort.

12.6.    The obligation to maintain confidentiality shall apply for the agreed contractual term and shall end automatically upon termination of the business relationship.

12.7.    The Contractor shall be entitled to use the experience knowledge (e.g. ideas, concepts, methods and know-how) which is developed or disclosed in the course of the performance of the contract and which is stored in the memory of the Contractor or the persons employed by the Contractor to provide the service. This shall not apply in the event of imminent infringement of the Client's industrial property rights or copyrights. The obligation to maintain confidentiality shall remain unaffected by this.

12.8.    The Parties shall comply with the applicable data protection laws.

12.9.    If and to the extent that the Contractor processes personal data of the Client on behalf of the Client within the scope of the provision of services, the Parties shall conclude a corresponding order processing contract upon conclusion of the main contract. In this case, the Contractor shall act as a processor within the meaning of Art. 28 para. 3 GDPR and shall process the corresponding personal data solely in accordance with these provisions and in accordance with the instructions of the Client.

13. Enticement of personnel and subcontractors 

14. Force majeure