General Terms and Conditions

This English translation is provided for convenience only. In the event of any discrepancy, the German version of these General Terms and Conditions shall prevail.

Version 04/2018

§ 1 General

1.1
The following General Terms and Conditions (GTC) form part of all contracts (in written and electronic form) between Human Risk Consulting GmbH, Emdenau 5, 34549 Edertal (hereinafter referred to as the Contractor) and the Client. Deviating terms and conditions of national and international contractual partners shall not become part of the contract.

1.2
Collateral agreements and other deviations from contracts concluded between the contracting parties or from these GTC must be made in text form. Oral statements must be confirmed in writing.

1.3
Agreements made between the contracting parties in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these terms and conditions.

1.4
These General Terms and Conditions also apply to all future business with the Client, insofar as it concerns legal transactions of a related nature.

1.5
Clients within the meaning of these GTC are exclusively entrepreneurs.

§ 2 Services

2.1
The Contractor provides various services, such as training courses/workshops/lectures, security consulting, internal and external investigations, social engineering penetration tests and security audits, background checks of persons and companies, and personality profiling of the opposing negotiator. The Client will find the current service description in their offer or in the corresponding contract concluded.

2.2
Voluntary, free-of-charge services and performances of the Contractor may be discontinued at any time. In this case the Client has no claim to continuation of the service.

2.3
The Contractor is entitled to use subcontractors and employees of their choice. The Contractor reserves the right to replace them at any time.

2.4
The planning of task fulfilment is carried out by the Contractor. Even where services are rendered at the Client’s premises, only the Contractor is authorised to issue instructions to their employees and subcontractors. The Contractor’s employees are not integrated into the Client’s operations.

2.5
The Client has no claim to disclosure of any informants of the Contractor.

§ 3 Placing of orders

3.1
Orders must be placed with the Contractor in writing or by email.

3.2
The contract is concluded upon acceptance of the Client’s order by order confirmation via email or post on the part of the Contractor, or by signing a contract.

3.3
Orders sent electronically (by email/form submission) are binding on the Client even without a signature.

3.4
Delivery dates require express agreement in a schedule.

3.5
Before accepting an order, the Contractor reserves the right to conduct a preliminary analysis. If the preliminary analysis reveals a potential risk exposure for Human Risk Consulting GmbH in connection with the order, Human Risk Consulting GmbH may in such a case apply a risk surcharge as a percentage of the total invoice. The percentage is calculated on the basis of the number of employees exposed to the identified risk and is agreed contractually.

§ 4 Duties to cooperate

4.1
The Client undertakes to support all measures required for the provision of the services by the Contractor.

4.2
Where the services are rendered on the Client’s premises, the Client shall provide free of charge the measures required for the Contractor to render the services. The Client is not entitled to issue instructions of any kind to the Contractor’s employees regarding the performance of the contract.

4.3
Upon request and at their own expense, the Client shall provide all information, data and documents required by the Contractor to carry out the order in the form requested by the Contractor, and shall support the Contractor on request. Changes in the Client’s workflows that may cause changes in the services to be rendered by the Contractor for the Client require prior coordination with the Contractor regarding their effects.

4.4
The Client shall fulfil all duties to cooperate incumbent upon them in such a timely manner that the Contractor is not hindered in rendering the services. The Client shall ensure that the Contractor and/or third parties commissioned by the Contractor receive the necessary access to the Client’s premises to render the services. The Client is responsible for ensuring that the employees of their affiliated companies or third parties commissioned by them who are involved in the performance of the contract cooperate accordingly.

4.5
If the Client does not fulfil their duties to cooperate on the agreed dates or to the intended extent, the services rendered by the Contractor shall nevertheless be deemed to have been rendered in accordance with the contract despite possible limitations. Schedules for the services to be rendered by the Contractor shall be postponed to a reasonable extent. The Client shall separately remunerate the additional expenses and/or costs incurred by the Contractor as a result at the Contractor’s applicable rates.

4.6
Unless otherwise agreed, provisions and cooperation by the Client are free of charge.

§ 5 Contact person

For the duration of the contract, the Client shall name one or more responsible contact persons. The contact person named by the Client acts as the authorised representative who is responsible for all project activities, procures all contacts and makes or brings about all decisions that are necessary and expedient for the prompt progress of the work. The Client may change the responsible person at any time but must inform the Contractor without delay.

§ 6 Terms of payment

6.1
Unless otherwise agreed: invoicing of the flat-rate remuneration takes place monthly in advance. Invoicing of services billed on a time-and-materials basis takes place monthly.

6.2
Otherwise, invoices are due for payment within 10 days of invoicing.

6.3
Travel is billed according to the costs actually incurred. Travel time is charged at the hourly rate. Hours commenced are charged in full.

6.4
All prices stated are exclusive of statutory value added tax.

6.5
Invoices may be sent by email.

6.6
The execution of an order may be made dependent on a reasonable advance payment. Once the advance payment has been used up, the Contractor may suspend work until a new advance payment is made. Special surcharges are reserved for work abroad.

6.7
The Client is entitled to exercise a right of retention or to set off only insofar as the underlying counterclaim has been finally established by a court or is undisputed.

6.8
If, as a result of the execution of the order, the Contractor is called upon in proceedings or procedures by way of hearing or written reporting, the Client is obliged to remunerate the time spent and the expenses in accordance with the Contractor’s rates. Compensation paid by the court for such involvement shall be credited against the remuneration.

6.9
In the event of premature termination of the contractual relationship, the Contractor is entitled to the fees accrued up to termination and to reimbursement of the expenses incurred up to that point. The assertion of further damages remains reserved.

§ 7 Liability for defects

Should services not be performed, not be performed in accordance with the contract or be performed defectively due to circumstances for which the Contractor is responsible, the Contractor is obliged to render these services in accordance with the contract within a reasonable period. The Client is obliged to give written notice of this without delay, at the latest within one week after performance of the service. The statutory provisions apply in addition.

§ 8 Liability, third-party rights

8.1
For damage to legal interests other than life, body or health, the Contractor’s liability towards the Client is excluded insofar as the damage is not based on intentional or grossly negligent conduct of the Contractor, one of their legal representatives or one of their vicarious agents, and the conduct does not constitute a breach of essential contractual obligations. Essential contractual obligations are those obligations whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance the Client may regularly rely.

8.2
The aforementioned exclusions and limitations of liability do not apply in the event that the Contractor has assumed express guarantees, in the case of claims due to the absence of warranted characteristics, or insofar as claims under the German Product Liability Act are concerned.

8.3
With regard to the recovery of data, the Contractor is liable only insofar as the Client has taken all necessary and reasonable data backup precautions and has ensured that the data can be reconstructed with reasonable effort from data material held in machine-readable form. This does not apply in the case of a backup service expressly agreed by contract with the Contractor.

8.4
The Client warrants that the content and materials made available to the Contractor are entirely free of third-party rights and may also be made available for use in the project from a legal point of view.

8.5
In the event that third-party rights (e.g. personal rights, trademark, design or patent rights) are nevertheless affected by the Contractor’s use of the materials provided, the Client shall indemnify the Contractor against any third-party claims and shall also communicate this to the third parties on request. In ongoing proceedings, the Client shall join on the side of the Contractor. The Client shall reimburse the Contractor for all necessary costs, in particular the necessary costs of legal action, in connection with the infringement.

§ 9 Confidentiality, data protection

9.1
The parties undertake to maintain the strictest confidentiality regarding all confidential information of the respective contractual partner that comes to their knowledge in connection with this contract, in particular business or trade secrets of the other party, and neither to pass it on nor to exploit it in any other way. This applies vis-à-vis any unauthorised third parties, i.e. also vis-à-vis unauthorised employees of both the Contractor and the Client, unless the disclosure of information is necessary for the proper fulfilment of the contractual obligations. In cases of doubt, the respective party is obliged to ask the other party for consent before disclosure. Furthermore, the obligation to comply with the relevant data protection provisions applies.

9.2
“Confidential information” means all information that one party communicates or makes available to the other party in connection with this contract, whether in written, oral, visual or electronic form (including software and associated documentation), and that is marked as “confidential” (or whose confidential nature is apparent from the circumstances). Information is not deemed confidential if: (a) a party has lawfully acquired it from third parties who were not bound to confidentiality vis-à-vis the other party and these third parties in turn did not obtain the information through a breach of protective provisions, (b) a party has developed it independently without recourse to or use of confidential information, or (c) it is or has become publicly known through no fault or action of a party.

9.3
On the part of the Contractor, the existing investigation reports and documents are deleted or destroyed after completion of the order.

§ 10 Rights to work results, rights of use

10.1
Only the Contractor may freely dispose of ideas, procedures, concepts and other techniques that arise in the performance of the contractual service and are incorporated into the work results. The same applies to know-how and experience gained during the performance of the contractual services and the use of their results.

10.2
Insofar as the Contractor renders creation services for the Client, the Contractor grants the Client, upon handover of the works, a simple right, unlimited in space and time, to use them for their own purposes exclusively to the extent agreed in the contract, unless other agreements have been made.

§ 11 Acceptance, complaints

11.1
Insofar as creation services have been agreed, the Contractor indicates readiness for acceptance of the results by handing them over to the Client.

11.2
After handover, the Client shall examine and test the results without delay to determine whether they essentially conform to the contract. The Client shall notify the Contractor of any defects immediately.

11.3
If the results essentially correspond to the contractual provisions, the Client declares acceptance. This declaration is made in text form by means of a release note.

11.4
If no detailed written notice of defects concerning not insignificant defects is received within a period of 2 weeks after handover of the results, the delivered results shall be deemed accepted or released. Holiday periods do not interrupt these provisions.

11.5
The Client is not entitled to rights arising from the warranty for defects that were known to the Client at the time of acceptance, that would have been obvious during a proper initial examination, that otherwise did not become known to the Client through negligence, or that were not reported by the Client.

§ 12 Miscellaneous

12.1
The relations between the contracting parties are governed by the law applicable in the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

12.2
The exclusive place of jurisdiction for all disputes arising from this contract is the registered office of the Contractor.