General Terms and Conditions (GTC)

MeJuvante GmbH — General Terms and Conditions for Works and Services

As of: March 2010, version 4.3

This is a courtesy English translation. The legally binding version is the German original PDF: download the GTC as PDF. The text below serves readability only.

I. Subject matter of the contract

(1) These General Terms and Conditions of MeJuvante Unternehmensberatung govern the provision of specified contractual works and services by MeJuvante — hereinafter referred to as the Contractor — for the customer — hereinafter referred to as the Client.

(1.1) The Contractor's services are agreed in the offer as either works-contract services or service-contract services.

(1.2) For works-contract services, the Contractor is responsible for the supervision, control and monitoring of the provision of services as well as for the services rendered. The organisational integration of the Contractor's services into the Client's operational processes is to be carried out by the Client on its own responsibility. It is pointed out that, according to the state of the art, it is not possible to exclude errors in information technology programs under all operating conditions.

(1.3) Service-contract services serve strategy, process, organisation and system consulting and support of the Client.

(1.4) The Contractor provides these in accordance with the principles of proper professional practice through qualified employees on its own responsibility.

(1.5) The employees required to provide the service are selected and deployed by the Contractor. The selection of employees is made in consultation with the Client.

(1.6) The Client is responsible for the results it seeks and can thereby achieve on the basis of the Contractor's works-contract or service-contract services.

(2) A contract comes into being upon acceptance or provision of the service by the Client and the Contractor. With the service, the Client receives the reference to the GTC, which apply to all subsequent offers until they are amended.

II. Planning and execution conditions, completion date, acceptance, responsibilities of the contracting parties

(1) The offer contains the "description of services", the planning and execution conditions, the definition of the functions and specifications (performance features) of a work, as well as information on the parts, devices, programs and other necessary products to be used.

(2) In the offer, the contracting parties agree a schedule for the provision of services and a planned completion date for the completion of service-contract services, as well as a planned or fixed completion date for the completion and handover of works-contract services.

(3) For service-contract services, the Contractor and Client define the task, procedure and objective of the consulting service individually in writing.

(3.1) For works-contract services, the Contractor will, at the completion date and to the extent agreed in the offer, demonstrate fulfilment of the performance features according to defined acceptance criteria and by means of test data and test scenarios to be provided by the Client, in an acceptance test.

(3.2) The Client will accept the works-contract services without delay after handover and/or successful acceptance test.

(3.3) Insignificant deviations from the agreed performance features and acceptance criteria do not entitle the Client to refuse acceptance.

(3.4) The Contractor's obligation to remedy defects pursuant to clause 11 (Warranty) remains unaffected.

(3.5) As soon as components or partial results are used productively by the Client, they are deemed accepted.

(3.6) Upon acceptance, a protocol to be signed by both parties is to be drawn up, confirming the conformity of the agreed service with the acceptance criteria. A list of the defects identified during acceptance is attached. The defects are divided into defect classes.

(3.7) If the Contractor, for reasons for which it is responsible, does not succeed in demonstrating the agreed performance features by the completion date or, if necessary, within a reasonable grace period, the Client may withdraw from the contract in whole or in part after expiry of the grace period. In this case, clause 16.4 applies accordingly.

(4) The following defect classes are agreed for acceptance:

(4.1) Defect class 1: The appropriate use (economically sensible use) is not possible or is unreasonably restricted or hindered by such defects.

(4.2) Defect class 2: The appropriate use is not impaired to such an extent that the acceptance test cannot nevertheless be continued. These defects are remedied as far as possible during the agreed duration of the acceptance test.

(4.3) Defect class 3: The appropriate use is not, or only insignificantly, restricted by these defects.

(5) The final classification of these defects into one of the above defect classes is made by mutual agreement between the contracting parties.

(5.1) Defects of defect class 2 remaining after acceptance, as well as defects of defect class 3, are remedied within the scope of the warranty according to a schedule to be drawn up jointly.

(5.2) Defects of defect class 1 constitute "significant deviations", while defects of defect classes 2 and 3 constitute "insignificant deviations". Due to defects in devices and programs of other manufacturers that are not supplied under this contract, and/or operating errors for which the Contractor is not responsible, neither the acceptance test may be extended nor acceptance refused.

(6) The Client will provide the Contractor with the necessary working conditions (such as system capacity, data display devices, premises, telephone and network connections, etc.) free of charge. Where applicable, further responsibilities of the contracting parties are listed in the offer. In providing the service, the Contractor depends on the Client fulfilling the responsibilities it has assumed on time. If this does not happen and delays and/or additional expense arise as a result, the Contractor may — without prejudice to further statutory rights — demand changes to the schedule and prices.

III. Changes to the scope of services

(1) Each of the contracting parties may request changes to the agreed scope of services from the other contracting party in writing. Upon receipt of a change request, the recipient will examine whether and on what terms the change can be implemented and will inform the applicant of its consent or rejection in writing without delay, giving reasons where appropriate. If a change request by the Client requires an extensive review, this will be agreed separately. The Contractor may charge for the review effort involved.

(2) The contractual adjustments to the agreed conditions and services required for a review and/or change are set out in writing (additional change agreement/offer) and come into being in accordance with clause 1.3.

IV. Prices and payment terms

(1) Works-contract and service-contract services are charged at the fixed price stated in the offer or, in accordance with clause 4.2, on a time-and-materials basis after completion or acceptance of the services, unless another form of invoicing is agreed in the offer.

(2) For works-contract and service-contract services on a time-and-materials basis, the working and travel times incurred as well as the parts consumed are charged at the prices stated in the offer at the time of the service. Other services, including accommodation and travel costs, are charged additionally.

(3) The prices stated in the offer for works-contract and service-contract services on a time-and-materials basis may be changed by the Contractor with three months' notice, for the first time 12 months after a contract comes into being. Attention is drawn to the Client's right of termination under clause 16.

(4) Estimated prices stated in the offer for works-contract and service-contract services on a time-and-materials basis are non-binding. The quantity assumptions underlying an estimate are based on an assessment of the scope of services carried out to the best of knowledge. If, in the course of providing the service, the Contractor determines that the quantity assumptions are being exceeded, it will notify the Client of this without delay. Until the Client's written consent is available, the Contractor will not exceed the quantity assumptions underlying the estimated price.

(5) If the Client concludes an employment contract within one year with a candidate presented by MeJuvante Services (within the scope of Recruiting Services) or with an employee of MeJuvante (within the scope of Consulting services), MeJuvante receives, regardless of the duration of employment, a placement fee according to the following scale: annual gross salary — fee: 0 – 39,999 € — 10,000 € (flat rate); 40,000 – 49,999 € — 24 %; 50,000 – 59,999 € — 26 %; > 60,000 € — 30 %. The placement fee is calculated according to the annual gross remuneration agreed between the Client and the candidate, plus the statutory value added tax, but is at least 10,000 €.

(6) If the Client commissions an employee presented by MeJuvante (within the scope of Consulting Services or management consulting services) within the framework of a service, the following costs apply according to skill level. Skill level — fee (per hour): Junior Consultant 130.00 €/h; Consultant 175.00 €/h; Senior Consultant 194.00 €/h; Managing Consultant 225.00 €/h; Vice President 315.00 €/h. Should consultants work longer than 8 hours, an overtime surcharge of 30% applies. On Sundays and public holidays, a surcharge of 100% applies. Within the scope of SME consulting, the average hourly rate of 125.00 €/h recommended by the IHK (Chamber of Commerce) is charged for the skill levels Junior Consultant, Consultant and Senior Consultant. For the further skill levels, a rate of 180 € is applied.

(7) Value added tax is invoiced at the VAT rate applicable at the time of the service. If the VAT rate changes within the contract period, the periods with the respective VAT rates are deemed to be agreed separately.

(8) Invoices are payable upon receipt without deduction. If the invoice amount has not been received within 14 days after the due date, the Contractor is entitled to claim default interest at the statutory rate.

(9) The Client may only offset if its counterclaim is undisputed or has been established as final and binding.

V. Deployment of personnel

(1) The contracting parties each name a contact person for mutual coordination and clarification of all questions that arise in the course of providing the service. The contact person named by the Client will provide the Contractor with the necessary information at short notice, make decisions or bring them about.

(2) During the provision of services, the contracting parties are responsible for the selection, supervision, control, monitoring and remuneration of their respective deployed employees.

VI. Subcontracts

(1) The Contractor may have works-contract and service-contract services performed in whole or in part by subcontractors of its choice.

(2) The conditions contained in these GTC for the Contractor's personnel apply to the same extent to the personnel of a subcontractor.

VII. Confidential information

(1) The contracting parties will treat material and not generally known matters of the other contracting party with the care customary in business. In particular, the Contractor is only entitled, with the Client's consent, to make reports, documents, expert opinions, other written statements and results of its work accessible to third parties.

(2) Any protection of especially confidential information beyond this, and the associated definition of prerequisites and conditions, requires in each case the conclusion of a separate written agreement (confidentiality agreement). Ideas, concepts, know-how and techniques relating to information processing may be freely used by the contracting parties, insofar as no property rights preclude this.

VIII. Services for project and job applicants | Use of personal data

(1) Your personal data, including your address and e-mail address, may under certain circumstances be passed on to third parties. This includes our service partners who require the transmission of data for project processing. In such cases, however, the scope of the data transmitted is limited to the necessary extent.

(2) If you have subscribed to our newsletter, we send you information about jobs, projects and offers of MeJuvante GmbH by e-mail. Unsubscribing from the newsletter is possible at any time. You have the right at any time to free rectification, blocking and, where applicable, erasure of your stored data. Please contact us at newsletter@mejuvante.com or send us your request by post or fax.

IX. Client's duties to cooperate

(1) To implement the business relationship entered into by the parties, and in particular the Contractor's obligation to provide services, close cooperation by the Client is indispensable. This cooperation is therefore a material contractual obligation. Within this framework, the Client is obliged to create, free of charge, the prerequisites in the operational sphere that are necessary for the proper execution of the assignment. This includes, in particular, the provision of appropriate workspaces for the Contractor's employees, including all necessary work equipment and the associated infrastructure (e.g. IT systems, telecommunications systems, etc.). Furthermore, the Client undertakes to provide all necessary information and documents, naming the relevant contact persons.

(2) The Client also names a contact person who is available to the Contractor's employees during the agreed working hours; the contact person is authorised to make declarations that are necessary as interim decisions in the course of continuing the assignment.

(3) The Contractor's employees are granted access to the information necessary for their work at all times. The Client also undertakes to supply the Contractor in good time with all relevant documents and to inform it of all processes and circumstances that could be of significance for the execution of the assignment. This also applies to the documents, processes and circumstances that only become known during the Contractor's work.

(4) At the Contractor's request, the Client must confirm the completeness of the documents submitted and the information and declarations given, in a written statement formulated by the Contractor.

(5) The Client warrants that the reports, organisational plans, drafts, drawings, statements, programs, calculations, expert opinions and other documents prepared by the Contractor within the scope of the assignment are used only for its own purposes. Insofar as copyrights have arisen in the Contractor's work results, these remain with the Contractor.

(6) If the Client fails to fulfil one of its duties to cooperate as agreed, the resulting consequences, such as additional services and delays, are borne by the Client. The Contractor may invoice the Client for the additional expense incurred.

(7) The Client warrants that the reports, tax records, turnover records, etc. to be prepared within the scope of the assignment and against the background of invoicing are made available to the Contractor as part of the invoicing immediately after their arrival or availability. Should the corresponding information not be made available by the Client, the service will, until further notice, be billed in accordance with IV Prices and Payment Terms, at least at the average rate of 125.00 €/h.

(8) All duties to cooperate listed here are material principal obligations of the Client and are agreed as such.

X. Default of acceptance

(1) If the Client or a third party commissioned by it is in default of acceptance of the services, or if the Client fails to perform or delays one of its duties to cooperate under clause 8, the Contractor may demand the agreed remuneration for the services not rendered as a result and is entitled to terminate the contract without notice.

(2) The rights under clause 9.1 are available to the Contractor in particular also if, in the execution of an assignment, the cooperation of the Client and/or of third parties commissioned by it is of influence and this cooperation is not provided in a manner appropriate in type and scope by suitable persons. In no case is the Contractor liable for damages connected with the provision of cooperation services by the Client and/or third parties commissioned by it.

(3) The Contractor's claims for compensation of the additional expenses incurred remain unaffected.

10. Ownership and rights of use

(1) Materials are written works or other copyright-protected works (work results) that are handed over to the Client in accordance with the agreed scope of services in written, machine-readable or other form of representation; such as programs, program listings, utility programs, documentation, protocols, drawings and similar works. The term "materials" does not include programs that are subject to their own licence terms.

(2) Changes and modifications of existing materials are marked in the offer as "adaptations". Before the adaptation, the Client will provide the Contractor with corresponding consent from the rights holder of the existing material.

(3) The Contractor specifies the materials handed over to the Client. The Contractor or third parties hold all ownership or usage rights (including copyright) in the materials that arise during the provision of services or already existed beforehand. Unless otherwise regulated in the offer, the Client receives a copy of these specified materials and thereby the irrevocable, non-exclusive, worldwide right to use, execute, reproduce, display, transmit and distribute copies of these materials within its company. The Client is obliged to affix the copyright notice and other proprietary notices to every copy made under these conditions.

(4) A company within the meaning of the GTC is any legal person (GmbH, AG, etc.) as well as any subsidiary in which a shareholding of more than 50 percent exists.

(5) For inventions that arose or were developed at one of the contracting parties during the provision of services and for which property rights have been applied for, the following applies:

(5.1) Inventions by employees of the Client belong to the Client, and those by employees of the Contractor belong to the Contractor. For these inventions, as well as for property rights granted for them, the contracting parties grant each other a non-exclusive, irrevocable, worldwide and royalty-free licence for their company.

(5.2) Inventions made jointly by employees of the Client and the Contractor, and property rights granted for them, belong to both contracting parties. Each of the contracting parties has the right to grant licences for such inventions to third parties or to transfer its rights, without informing the other contracting party or making payments to it.

XI. Warranty

(1) For works-contract services, the Contractor warrants that the performance features agreed in the offer are fulfilled and correspond to the object of the service. The Contractor will remedy warranty defects reported by the Client in writing. The warranty period begins with acceptance (clause 2.4) and is 12 months. If a defect is not remedied within a reasonable time, the Client may, with regard to the defect, at its choice demand a reduction of the price or, if the value or fitness of the work is significantly reduced, the rescission of the contract.

(2) The warranty lapses for such programs that the Client modifies or otherwise interferes with, unless it proves that this was not causal for the defect.

(3) The Contractor may demand remuneration for its expense insofar as it has acted on the basis of a defect report, if it proves that it is not responsible for the defect.

(4) For service-contract services, there is no claim to warranty.

XII. Liability

(1) The Contractor is liable for damages arising from the absence of warranted characteristics, from the fraudulent concealment of defects, or from a breach of material contractual obligations (cardinal obligations) that endangers the purpose of the contract, for personal injury, and for damages that it or its vicarious agents caused intentionally or through gross negligence and that led to damage from injury to life, body or health.

(2) In the case of slightly negligent causation of damage, the Contractor is liable, regardless of the legal grounds, only up to an amount of EUR 25,000 (twenty-five thousand EURO) or, if the value of the service causing the damage is higher, up to the amount of the price of the service causing the damage.

(3) In the case of slightly negligent conduct, the Contractor is not liable for lost profit, savings not realised, compensation for wasted expenditure, damages from claims of third parties and other indirect and consequential damages, or for recorded data, even if the Contractor was informed of the possibility of such damages.

XIII. Force majeure

(1) Force majeure, riot, strike, lockout and significant operational disruptions through no fault of the Contractor entitle the Contractor to postpone the fulfilment of its obligations for the duration of the hindrance and for a reasonable additional time. The Contractor informs the Client without delay of the occurrence of such a circumstance.

XIV. Performance disruptions

(1) If the service is not provided in accordance with the contract and the Contractor is responsible for this, the Contractor is obliged to provide the service in accordance with the contract, without additional costs for the Client, within a reasonable period. A precondition is a complaint by the Client, which must be made without delay and in writing. The complaint must be made at the latest within 2 weeks of becoming aware, or from the point in time at which the Client should have become aware without gross negligence. If the provision of the service in accordance with the contract does not succeed in material parts for reasons for which the Contractor is responsible, within a reasonable grace period to be set by the Client in writing, the Client is entitled to terminate the contract without notice.

(2) In this case, the Contractor is entitled to remuneration for the services rendered on the basis of the contract up to the effective date of termination. Remuneration is forfeited only for those services for which the Client proves, within two weeks of termination, that they are not usable and of no interest to it. The right to extraordinary termination remains unaffected. Further claims of the Client due to qualitative performance disruption are excluded. This exclusion does not apply in the case of intent or gross negligence, nor in the case of injury to life, body or health.

XV. Rights of third parties

(1) The Contractor will defend the Client against all claims derived from an infringement of an industrial property right or copyright by materials used in accordance with the contract, and will reimburse the Client for costs and damages imposed by a court or contained in a settlement previously approved by the Contractor, provided that the Client notifies the Contractor of such claims without delay in writing and reserves to the Contractor all defensive measures and settlement negotiations. If such claims have been asserted or are to be expected, the Contractor may, at its expense, modify or replace the materials. If this, or the obtaining of a usage right with reasonable effort, is not possible, the Client agrees to return the materials to the Contractor. In this case, the Contractor reimburses the Client at most the amount paid to the Contractor for the creation of these materials.

(2) The Contractor's liability is excluded if claims are based on the fact that

(2.1) components provided by the Client are incorporated into materials, or the Contractor had to observe designs, specifications or instructions when creating the materials that were supplied by the Client or by third parties on behalf of the Client, or

(2.2) the materials are modified by the Client or used under conditions other than those specified, or

(2.3) the materials are combined or used with other materials not supplied by the Contractor as a system, or the materials are combined or used with a product, data, facilities or business methods not supplied by the Contractor, or

(2.4) the materials are distributed, operated or used in the interest of third parties outside the Client's company, or

(2.5) the infringement of a property right or copyright occurs only through non-Contractor materials.

(3) The Client indemnifies the Contractor and its subcontractors against any liability for claims of third parties that arise due to an unauthorised handover for processing in accordance with clause 10.2, insofar as there is no intent or gross negligence on the part of the Contractor or its vicarious agents.

XVI. Contract duration and termination

(1) The contracts concluded between the Client and the Contractor each end upon expiry of the agreed period. A deviating termination arrangement requires a written agreement. The mutual right to extraordinary termination remains unaffected hereby.

(2) The Client and the Contractor may terminate a contract if the other fails to fulfil its contractual obligations — even after granting a reasonable grace period.

(3) After a termination in accordance with clauses 16.1 and 16.2, the Contractor will cease all work to fulfil the affected object of the service without delay or according to a schedule agreed with the Client. The Client pays the agreed price less the proportionate price for that agreed scope of services which was saved due to the termination.

(4) If the Client terminates for reasons for which the Contractor is responsible, it pays the price only for those parts of the services received that are usable for it.

(5) Insofar as contractual conditions are, by their nature, not limited in time, they also apply after the end of the contractual relationship and for any legal successors or contract assignees.

XVII. Duties of loyalty

(1) The Client and the Contractor undertake mutual loyalty. In particular, the hiring or other employment of employees or former employees who were active in connection with the execution of the assignment is to be refrained from before 12 months have elapsed after the end of the cooperation.

XVIII. Remuneration

(1) The details of the remuneration are, in principle, regulated in writing in the respective offer and individual contract.

XIX. Business partners

(1) The Contractor has concluded agreements with certain partners (hereinafter referred to as business partners) for the marketing and support of their products and services. Insofar as a business partner arranges works-contract and service-contract services under these GTC, only these GTC apply. However, the Contractor is neither responsible for the business activities of the business partner, nor for any commitments the latter makes to the Client, nor for products and services that the business partner offers under its own contracts.

XX. General

(1) The transfer of rights and obligations under a contract requires the prior written consent of the Client and the Contractor only if it does not concern a transfer to an affiliated company or to a legal successor. Consent may only be refused for good cause.

(2) Otherwise, a third party may at most assert rights under a contract in accordance with the clauses "Rights of third parties" and "Liability".

(3) The use of trademarks, trade names or other designations in advertising or in other publications requires the prior written consent of the rights holder.

(4) The Client agrees that the Contractor and its affiliated companies may store and use its contact information, including names, telephone numbers and e-mail addresses, in all countries in which the Contractor and its affiliated companies are commercially active. Such information may be processed and used within the scope of the existing business relationship and passed on to subcontractors and agents of the Contractor and its affiliated companies for the purpose of joint business activities, including communication with the Client (e.g. for processing orders, for advertising campaigns, for market research).

(5) Before the Client or the Contractor takes legal action for non-fulfilment of a contractual condition, the party concerned must be given the opportunity to fulfil it in a reasonable manner.

(6) Claims under a contract become time-barred within three years.

(7) Legal acts relating to a contract must be made in writing.

(8) It is the Client's responsibility to comply with the import and export laws of the Federal Republic of Germany and the USA.

(9) The law of the Federal Republic of Germany applies. The international sales law of the "United Nations Convention on Contracts for the International Sale of Goods (CISG)" is excluded.

(10) Should a condition or part of the contract be invalid, the remaining conditions and parts of the contract remain in force.

XXI. Written form, legal system, place of jurisdiction

(1) Amendments and additions require written form to be effective. Conflicting terms and conditions of the Client do not apply. Exclusively German law applies to this contract. The place of performance for all obligations and disputes arising from the individual contracts is the registered office of the Contractor. The exclusive place of jurisdiction is Frankfurt.

XXII. Severability clause

(1) Should parts of these provisions be or become wholly or partly void or ineffective, the remaining provisions nevertheless continue to apply. The parties undertake to replace the ineffective provisions with economically equivalent ones.

XXIII. Written form clause

(1) Additions and/or amendments, including to the written form clause, require written form.