Terms and Conditions for Consulting, Training, and Support Services
This is a translation from the German. The German text alone is legally binding.
1. Contractual Basis
In addition to the contractual agreements, the Terms and Conditions for Consulting, Training and Other Services in the version as amended at the time the contract is concluded and also statutory provisions apply to consulting, training and other services provided by imd professional GmbH & Co. KG (imds professional). Any conflicting terms and conditions or equivalent contractual regulations of the Contractor are deemed to have been waived on conclusion of the contract. imds professional’s Terms and Conditions also apply if performance is rendered to the Contractor unconditionally despite knowledge of the Contractor’s conflicting or differing terms and conditions.
2. Conclusion of Contract
A contractual relationship does not come into effect until a written confirmation of order has been delivered to the Contractor. There is no entitlement to a confirmation of order. The Contractor will be informed without delay if an order is declined.
3. Rescission of Contract
The Contractor can rescind the contract without reason and at no cost up until four weeks prior to the advised start of performance. The notice period is only allowed if the notice of rescission is received by imds professional within the specified time.
If the notice of rescission is received by imds professional between two and four weeks prior to the advised start of performance, 50% of the agreed fee will be charged as liquidated damages. This is without prejudice to assertion of additional claims for damages.
If the notice of rescission is received by imds professional within the final two weeks prior to the advised start of performance, the total agreed fee will be charged as liquidated damages.
This fee cannot be set off against any subsequent performance.
The Contractor is liable for any costs incurred through the rescission, in particular cancellation costs for hotel or flight reservations.
If the Contractor postpones the date, 25% of the performance fee is due as compensation.
Assertion of additional claims for damages remains unaffected.
Rescission of contract is ruled out from the date of the advised start of performance.
imds professional may rescind the contract if unforeseen hindrances to performance, for which imds professional is not liable, impede performance as it was set out in the order confirmation and if it is unreasonable to expect imds professional to overcome these hindrances. In particular, it can be deemed unreasonable if imds professional’s options for changing the performance as described in their offer (Item 6) are not capable of eliminating the hindrance to performance or if imds professional has already made use once of appropriate options without being able to eliminate the hindrance to performance.
Each rescission must be clarified in writing.
Such cases do not entitle the Contractor to any claims for performance not rendered, in particular not for services already initiated by the Contractor such as costs for outward travel and accommodation. Further statutory rights for both parties to rescind the contract remain unaffected by the provisions of this item in all other respects.
If, after accepting the offer or placing the order, performance is not requested within two months after the agreed start of performance, imds professional is entitled to charge the performance value for two months.
4. Termination of Contract
Both parties may give notice of termination for due cause of all executed contracts with four weeks’ prior notice if remuneration is calculated by the hour, day or week. If remuneration is not calculated by units of time, the contract can be terminated by observing four weeks’ notice to the end of the calendar quarter. The statutory notice periods for terminating contractual relationships apply (Section 621 German Civil Code [BGB]) in all other respects. Termination prior to the advised date for start of performance is excluded. The right to termination without prior notice for good cause remains unaffected.
5. Performance by imds professional
imds professional renders performance in accordance with the order confirmation and provides sufficiently qualified staff to do so. imds professional is entitled to use third parties to fulfil its contractual liabilities.
6. Changes to the Performance stated in the Offer
Substantive deviations from the order confirmation are permitted unconditionally provided imds professional observes the objective of the order.
imds professional may replace a designated instructor or consultant provided the new instructor or consultant has the required expertise.
imds professional may change the stipulated performance date at its discretion if imds professional is not liable for impossibility of performance at the agreed time. This applies in particular if a) the designated instructor or consultant is prevented at short notice from rendering performance, or b) performance becomes impossible at the agreed location at short notice.
If performance concerns execution of service projects, imds professional may make changes to the time of performance without restriction, if imds professional is not liable for the delay.
7. Time of Performance
Performance by imds professional commences when the instructor or consultant first appears at the agreed place and time of performance. This also applies if imds professional makes documents available before the start of performance.
Performance by imds professional concludes at the end of the day on which the final part performance required in accordance with the order confirmation has been rendered.
If the subject of performance is the execution of service projects performance begins at the agreed date for the start of the project and ends with the completion of the agreed scope of services or with the agreed project end date.
8. Place of Performance
Place of performance is imds professional GmbH & CO. KG in Weilrod (Germany), unless otherwise stated.
9. Cooperation by the Contractor
Notwithstanding any contractual agreements in an individual case, the Contractor shall without remuneration assist imds professional in rendering performance. In this regard, the Contractor shall create within its area of operation in particular all necessary conditions so that imds professional can render performance in accordance with the contract without a need to carry out further preliminary work. This includes planning and organizing any necessary preparatory training for their own employees who will be participating and informing imds professional in good time about the level of previous knowledge that these employees have.
The Contractor is responsible for providing the information in terms of correctness and required timing. This applies both to all information that the Contractor must provide itself and to information that must be provided by his suppliers. Incorrect, delayed or missing information – even if this is the responsibility of the Contractor’s suppliers – represents a project risk. If a project cannot be completed or cannot be completed in time due to missing or wrong information, imds professional is in any case entitled to charge for their expended services. In such cases the client cannot refer to the fact that the project goal was reached too late, only partially or not at all.
Further, the Contractor shall appoint a contact person who is authorized to make a declaration of intent if such a declaration is required for the rendering and continuation of performance.
If third-party usufructs, exploitation rights or similar rights are required for performance, the Contractor shall obtain them in good time and confirm the availability of all required rights with imds professional.
10. Property Rights and Copyrights
All documents transferred by imds professional or other tangible or intangible objects supplied by imds professional that may be protected by property rights, remain in its ownership until the agreed fees have been paid in full. If copyright works (Sections 2 et seq. German Copyright Law) are transferred to imds professional in connection with rendering of performance, these are also routinely protected by copyrights. Therefore, any works transferred to imds professional may only be used in conjunction with rendering of performance. Any duplication, dissemination or use beyond the scope of the contract is prohibited.
If course material is created in connection with rendering of performance (e.g. descriptions, translations, drawings), all property rights and copyrights are transferred exclusively to imds professional. Insofar as imds professional owns the corresponding rights, imds professional grants the Contractor a non-exclusive, nontransferrable usufruct for an unlimited time for internal use, with the exception of internal use for educational purposes. In the case of affiliated companies, only use within the contracting company is regarded as internal use.
imds professional’s entitlement to the agreed remuneration takes effect when the order confirmation is delivered to the Contractor.
Remuneration becomes due routinely when the invoice is delivered to the Contractor and is payable without deduction within 10 calendar days from the date given in the invoice. The invoice amount shall be paid in full; any bank charges shall be borne by the recipient of the invoice. Reimbursement of any bank charges borne by imds professional will be requested. No cash discounts are granted.
Invoices are issued routinely once imds professional has completed performance. If rendering of performance lasts longer than one month, invoices are issued on a monthly basis.
The specified remuneration does not include statutory value-added tax.
When awarding the contract/placing the order, the correct addressee for the invoice must be given. Amendments to invoices that are required due to incorrect details for the invoice recipient are subject to a fee of EUR 90 (net).
12. Default of Payment/Interest on Arrears
If the Contractor fails to make payment within the term of payment, they are in default of payment. Payment reminders are not necessary on the part of imds professional as the invoice is to be delivered prior to payment and a reasonable time for payment is given that is calculated from the invoice date according to the calendar.
The Contractor shall pay interest on arrears amounting to 8 percentage points annually over the base rate of interest and late charges for the duration of the delay in payment.
Further assertion of statutory rights in the case of arrears remains unaffected.
13. Limitation of Liability for imds professional
imds professional is only liable for damages that are due to gross negligence or intent by imds professional, one of its legal representatives or vicarious agents.
Any claim for damages is limited to contractual volume as regards the amount of loss except where this is not contradicted by mandatory statutory provisions.
If the damages are injuries to the life, limb or health of an individual, the statutory provisions shall apply.
imds professional is in particular not liable for a breakdown in telecommunications equipment, telecommunications lines and networks, or for indirect or direct consequences of such a breakdown, insofar as the equipment, lines or networks are maintained by a third party.
imds professional bears no responsibility for passing examinations or issuing of certificates as a consequence of rendering of performance.
imds professional is not liable for advice given, information provided or the use or the applicability of acquired knowledge.
imds professional is not liable for damages that are caused by viruses at the Contractor’s or at third parties, insofar as the damage was not caused through gross negligence or intent by imds professional, its legal representatives or vicarious agents.
imds professional is not liable for damages that result as a direct or indirect consequence of unauthorized access by a third party to the Contractor’s or third parties’ telecommunications or data processing systems.
imds professional is not liable for supplying information about prices for third-party services.
If the contractual performance consists of data input (IMDS-System), imds professional is solely liable for delays that are the result of gross negligence or intent by imds professional, its legal representatives or vicarious agents.
14. Non-solicitation Clause
The Contractor undertakes not to solicit any of imds professional’s employees, including freelancers, or to assist third parties in doing so. This agreement applies from the time of conclusion of the contract until one year after completion. The Contractor undertakes to pay a contractual penalty of 15,000 Euro to imds professional for each violation of the non-solicitation clause. Assertion of additional claims by imds professional remains unaffected.
15. Governing Law and Jurisdiction
The contractual relationship and its execution shall be governed exclusively by the laws of the Federal Republic of Germany.
The local competent court for the registered offices of imds professional is competent for any legal disputes arising from this contract.
16. Data Protection
imds professional, in relation to Section 33 of the German General Data Protection Regulation (BDSG), points out that personal data are collected, used, stored and processed as part of conclusion and execution of the contract, also by third parties.
Please find the detailed data protection policy at www.imds-professional.com/en/privacy-policy.html