Terms

General Terms and Conditions

of

CONNex Holding GmbH

  1. 1. General Framework for Cooperation

1.1. CONNex Holding GmbH provides consultancy services and other services in the field of business consultancy – in particular with regard to strategy, organisational, reorganization, foreign trade and business consulting.

1.2. With the conclusion of a consultancy agreement between CONNex Holding GmbH (hereinafter referred to as the consultant) and a customer (hereinafter referred to as the client), the client accepts these General Terms and Conditions, waiving any conflicting General Terms and Conditions.

 

  1. 2. Scope of Application

2.1. The following General Terms and Conditions shall apply to all consultancy services and/or other services provided by the consultant to the client. Insofar as individual agreements are made between the consultant and the client, individual agreements shall have precedence over these General Terms and Conditions.

2.2. Insofar as these General Terms and Conditions apply between the consultant and a client, these General Terms and Conditions shall apply to all consultancy services and/or other services provided in the future, even if the consultant does not reiterate this.

2.3. Apart from individual agreements with the client and these General Terms and Conditions, German law shall apply exclusively.

2.4. General Terms and Conditions of clients shall not apply to the cooperation with the consultant under any circumstance, even if the consultant does not expressly object to their inclusion.

2.5. The agreement takes effect upon signing of the offer by the client and the consultant or with the verbal placing of order based on a written confirmation of order from the consultant.

 

  1. 3. Object of the Agreement / Scope of Performance

3.1. The object of the agreement is the provision of consultancy services and/or other services specified in the agreement (order) between the consultant and the client. Details of the order such as the nature, content and scope of concrete consultancy services and/or other services, as well as the duration, fee, accountability, consulting organisation etc. shall be set out separately in the agreement in writing. The consultant is neither financial service provider nor financial broker.

3.2. The object of the order is the provision of consultancy services and/or other services specified in the agreement, not the achievement of a specific result.

3.3. Services of the consultant shall be deemed to have been delivered when the data collection, data analyses, as well as the evaluations with the resulting conclusions and recommendations have been developed together with the client, and are presented and described in a final meeting with the client. This shall be without prejudice regardless of whether the client follows the recommendations, or when they are implemented.

3.4. The client may only use the results subject to the agreement for internal business purposes. The client shall not transfer or disclose the results subject to the agreement to third parties without the consultant’s prior written consent. The consultant shall retain all rights and claims relating to copyrights, trademarks and other industrial property rights connected therewith, as well as to all methods, procedures, ideas and concepts, trade secrets and know-how included in the results subject to the agreement.

3.5. The consultant shall deliver all consultancy services and/or other services with the help of qualified and experienced consultants, with the greatest care, based on his entire know-how and based on the individual situation of the client at all times.

3.6. In assigning consultants to a case, the consultant shall accommodate the client’s request for certain consultants if possible, reserving however the right to commission consultants who meet the performance requirements.

3.7. Consultants of the consultant, who temporarily find themselves in the sphere of operations of the client for the purpose of executing the agreement, are only bound by the instructions of the consultant regarding the duration and nature of the job execution. Consultants are only obliged to observe the house regulations and safety related instructions thereof.

3.8. The parties agree that no consultant of the service provider shall be employed or commissioned by the client during the duration of the consultancy agreement and during a period of 6 months after the completion of the consultancy services. Failure to comply with this provision triggers a claim for damages amounting to EUR 25,000.

3.9. The client has the right to be informed at any time about the consultancy project during the execution of the assignment in cooperation with the leading consultant, and may request a written report on the essential information concerning the course of actions and results of the consultancy services after the execution of the assignment.

3.10. The consultant must always provide accurate and complete details regarding the company situation on the issues to be examined during the data collection process and in the data analyses and evaluations. Data provided by the client or by third parties shall only be checked for

plausibility. Analyses and conclusions/recommendations derived thereof shall be carried out according to recognized rules of science and practice. Outcomes of the consultancy services shall be presented in an understandable and comprehensible manner.

 

  1. 4. Confidentiality

4.1. The consultant undertakes to treat all information about the client and the client’s company gained in connection with the execution of the agreement as confidential, to the extent that its task does not include passing such information on to third parties.

4.2. At the request of the client, any information which may not be disclosed under any circumstance shall be marked by the client as ‘strictly confidential’ upon delivery to the consultant.

 

  1. 5. The Client’s Obligation to Cooperate

5.1. The client undertakes to support the consultant as actively as possible and to create all organisational and professional prerequisites required for the proper execution of the agreement within the company, in particular with regard to making all the necessary latest data and information available in a timely manner, to meeting all necessary decisions in a timely manner and, if required, to obtaining the consent of the decision-making bodies without delay, as well as to providing the consultant with suitable office space and all necessary means.

5.2. The client shall also ensure the participation of all managers and other employees of the company insofar as their presence is required for the execution of the agreement, as well as the timeliness, completeness and correctness of services that require the cooperation of the client’s employees based on the agreement between the consultant and the client.

5.3. At the request of the consultant, the client shall confirm in writing that all documents submitted, as well as all information and verbal explanations are correct and complete.

5.4. The client shall inform the consultant in good time and without being asked about all circumstances, which can be relevant for the execution of the agreement.

5.5. All intermediate results and reports submitted by the consultant shall be immediately examined by the client in order to assess whether the information pertaining to the client and the client’s company is correct; all necessary corrections shall be communicated to the consultant immediately in writing.

 

  1. 6. Business Partners

6.1. The consultant reserves the right to commission expert consultants for delivering the consultancy services and/or other services, in which case the consultant shall remain directly responsible towards the client at all times, according to Article 13 of the General Terms and Conditions.

6.2. The consultant guarantees that the commissioned consultants have the required expertise, and shall ensure the quality during the execution of the assignment.

6.3. The consultant shall have discretion to decides which consultants to commission.

 

  1. 7. Travel Expenses

7.1. All travel expenses shall be invoiced in accordance with the current tax regulations, as well as all rules laid down in the order.

 

  1. 8. Changes in Services

8.1. The consultant undertakes to give due consideration to all changes in services requested by the client to the extent that this is reasonable considering the operational capacities, especially against the background of the overall costs and scheduling.

8.2. The consultant reserves the right to examine any changes in services. Should the changes in services affect the terms and conditions agreed with regard to the overall costs and scheduling, the contracting parties shall agree upon appropriate adjustments of the terms and conditions in view of the increase of the remuneration and the postponement of planned completion dates.

8.3. In the case that the required changes in services are substantial and cannot be integrated in the agreed assignment, the consultant may require a separate commissioning of the works.

8.4. Changes and additions to the assignment or to the main results to be delivered shall require the written form in order to be effective. Minutes of meetings regarding the required changes in services can only be taken into account if they are signed by both parties.

8.5. As long as the changes in services have not been laid down in writing, the consultant shall execute the originally agreed assignment without taking any changes in services into account.

 

  1. 9. Hindrance of Service Performance, Delays, Impossibilities

9.1. The consultant can fall behind with his commissioned work only if definite completion dates are agreed upon as binding deadlines and the consultant is responsible for this delay. The consultant shall not be made responsible, for example, for the unexpected loss of the consultant commissioned for the consultancy project,

in case of force majeure or any event, which could not have been foreseen upon conclusion of the contract and which could lead to the consultant not delivering the agreed services at all or temporarily, or delivering them only under difficult conditions.

9.2. Equivalent to force majeure are consequences of war, terrorist attacks, labour disputes, sovereign intervention and similar circumstances, which directly or indirectly hinder the consultant from delivering services to the client.

9.3. If the hindrances are of a temporary nature, the consultant is entitled to postpone the fulfilment of its obligations for the duration of such hindrance and for a reasonable period after the interruption. If the delivery of services becomes permanently impossible due to such hindrance, the consultant shall be exempted from fulfilling these obligations.

9.4. In case of hindrances of service performance due to violations of the client’s obligations to provide information and cooperate according to the individual agreement and Article 5 of these General Terms and Conditions, the consultant shall be entitled to charge the agreed hourly and daily rates even if the agreed budget for consulting fees is thereby exceeded.

  1. 10. Remuneration / Payment

10.1. The consultant may charge fees and expenses for the delivered services on a monthly basis. The calculation of the fees is based on the actual working time and the respectively applicable hourly or daily fees for the consultant working on the client’s project.

10.2. Unless otherwise agreed, all travel expenses shall be invoiced in accordance with the current tax regulations based on the actual expenses and per diem allowances. Travelling times shall be calculated as 50 % of the hourly/daily fees.

10.3. In the case fixed, flat-rate or maximum fees are agreed upon, this shall only apply as long as the sum of the invoices does not exceed this amount. Claims for additional expenditure in case of violations of the client’s obligations to cooperate shall remain unaffected by this.

10.4. If the client withdraws from the agreement – irrespective of the legal grounds – before the commencement of the work, the consultant is entitled to damages amounting to 25 % of the agreed fees.

10.5. As long as the client defaults with the payment of due invoices to the consultant, the consultant may discontinue any services provided to the client. The client is solely responsible for delays resulting thereof with regard to the execution of the assignment.

10.6. All claims are due upon invoicing and are payable immediately without deduction. The legal value added tax shall be added to all price quotations and shall be charged separately in the invoices.

10.7. Offsetting claims of the consultant for remuneration and reimbursement of expenses is only permitted for undisputed claims or claims determined to be legally valid.

 

  1. 11. Warranty / Remedy of Defects

11.1. Consultants commissioned by the consultant shall carry out their assignment with the greatest care, based on the individual situation of the client at all times. Consultants cannot guarantee that the surveys and analyses, as well as the conclusions and recommendation derived from these investigations reflect the company’s situation with regard to the scope of consulting assignments in question correctly and completely. Data provided by third parties or by the client is only checked for plausibility.

11.2. The consultant does not provide any guarantee for the assignment of properly trained consultants with the necessary expertise or for the ongoing controlling and support during the execution of the agreement.

11.3. The consultant cannot guarantee for the success resulting from the consultation.

11.4. The client has the right to ask for the remedy of defects as long as this is possible with reasonable effort. The client shall report the defect to the consultant in writing within 30 days after the service delivery of after the final meeting. The warranty period is 3 months.

11.5. In the event of a failure to remedy defects or of rectification being unsuccessful, the client shall be entitled to withdraw from the agreement or to demand a reduction of the payment.

11.6. In the case the order is issued by a person carrying on a commercial business as part of that commercial business, a government-owned legal person under public law or a special government-owned fund under public law, the client may demand the cancellation of the contract only if the services rendered are of no interest to him due to the failure to subsequently fulfil the agreement. Article 12 shall apply to all claims for damages resulting thereof.

 

  1. 12. Liability

12.1. The liability of the consultant is excluded for all damages resulting from the client’s failure to fulfil his obligations to cooperate on key issues relevant for the execution of the agreement to his full capacity or in due time. The client must provide evidence for the complete and timely fulfilment of his obligations.

12.2. The consultant shall be liable towards the client for damages caused by simple or light negligence only if and to the extent that they are based on the violation of such obligations, which are absolutely necessary for the purpose of the agreement. In this case, the liability is limited to the order value. Liability for abnormal damages shall be excluded.

12.3. In addition, the consultant shall be liable towards the client for damages only if and to the extent that such damage was caused intentionally or was the result of serious negligence on the part of the consultant or his consultants. The liability of the consultant is limited to damages which may have been reasonably expected 12.4. The consultant holds a professional liability insurance amounting to EUR 250,000 per claim. A single claim case is regarded as the sum of claims for compensation of all rightful claimants. In the event that a substantially higher loss risk can be predicted, the consultant is obliged to offer the client a higher liability amount, provided that the client assumes the insurance premium due for this.

12.5. The consultant assumes no liability for damages resulting from the inappropriate use and/or implementation of recommendations made within the scope of the services or included in the work documentation.

12.6. Claims for damages may only be filed against the consultant within 6 months after the claimant(s) became aware of having suffered a loss, however, not later than 2 years from the event which constitutes a lawful claim.

12.7. Claims to compensation by the consultant against the client shall expire after 2 years after the claim arised.

12.8. In the event that services are delivered by involvement of a third party such as a system trader, an auditor, a tax consultant, a personnel consultant or an attorney, and the client has been informed thereof, any arising liability claims – in accordance with the legal provisions and the provisions of the third party – against the third party shall be deemed as assigned to the ordering party.

 

  1. 13. Duty of Discretion / Data Protection

13.1. The consultant is obliged not to disclose any business and trade secretsor other information marked as confidential which he has become aware of during the execution of the assignment. This also applies to all data collections, analyses, as well as conclusions and recommendations. Disclosure to third parties may only be made with the prior written consent of the client.

13.2. The consultant shall ensure that all persons employed for the execution of the assignment are aware of the obligation to comply with this provision.

13.3. The obligation of secrecy applies to all parties involved on the part of the consultant also after conclusion of the consulting assignment.

13.4. The consultant is explicitly authorized to process the personal data entrusted to him during the execution of the assignment, or to have it processed by third parties. The consultant guarantees that it will comply with the obligation to ensure data secrecy pursuant to the provisions of the Data Protection Act.

 

  1. 14. Protection of Intellectual Property

14.1. The client will ensure that documents prepared by the consultant shall only be used for his own purposes, and that no documents shall be made public without the prior consent of the consultant.

14.2. The use of the consulting services by or for any company affiliated with the client is also subject to a written agreement by the consultant.

14.3. The consultant shall retain copyright of any services provided by him, in so far as they are subject to copyright protection. The client receives in these cases the limited, time and place unrestricted, irrevocable, exclusive and non-transferable right to use the consultancy work results.

 

  1. 15. Termination

15.1. Unless otherwise agreed, the consultancy agreement may be terminated at any time with 14 days’ notice to the end of the month. The right for an extraordinary termination shall remain unaffected.

15.2. Any termination notice must be in writing to be effective.

 

  1. 16. Right of Retention

16.1. The consultant maintains the right of retention to all documents that have been provided to him until all claims have been settled in full; however, the exercise of this right of retention shall be deemed done in bad faith if such retention causes loss and/or damage to the client considered to be disproportionate and not justified on weighing the interests of each of the parties.

16.2. The consultant has to return all documents given to him by the client upon commissioning the assignment after settlement of his claims from the agreement. This provision does not apply to the correspondence between the parties.

 

  1. 17. Place of Fulfilment, Place of Jurisdiction

17.1. The place of fulfilment of the consultant’s services and for payments to the consultant is 66606 St. Wendel.

17.2. The place of jurisdiction for all disputes is the registered office of the consultant.

 

  1. 18. Further provisions

18.1. Rights from the contractual relationship with the consultant may be transferred to a third party only with the consultant’s prior consent.

18.2. Amendments and additions to these regulations have to be expressly identified as such.

18.3. Should individual provisions of these General Terms and Conditions prove invalid, in full or in part, or become so in the future, this shall not affect the validity of the remaining provisions. The parties undertake to immediately replace the ineffective clause with a valid provision.

18.4. The client confirms and recognizes that the consultant and the client can correspond over the Internet via e-mail and can exchange information.

St. Wendel, August 2012

These General Terms and Conditions shall apply as of August 1, 2012, until further notice.

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