General Terms and Conditions

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§1 SCOPE OF APPLICATION

1.1 These General Terms and Conditions of Consultancy supplement contracts (hereinafter

referred to as "contract"), the subject matter of which is the consultancy and provision of

information by TLK Consulting to the client, in particular, but not exclusively, in connection

with the preparation, planning and implementation of entrepreneurial or professional

decisions and projects. If and to the extent that individual provisions of these General Terms

and Conditions of Consultancy contradict what TLK Consulting has agreed individually with

the client, the individual agreements take precedence over the relevant General Terms and

Conditions of Consultancy.

1.2 If TLK Consulting has once included these General Terms and Conditions of

Consultancy in a contract with the client, they will also apply to all future contracts for

consultancy services between the client and TLK Consulting, even if TLK Consulting should

not refer to these General Terms and Conditions of Consultancy again in future contracts.

This does not apply only if and to the extent that the parties agree on the validity of new

General Terms and Conditions of Consultancy of TLK Consulting in the future contract.

1.3 The General Terms and Conditions of Consultancy of TLK Consulting apply exclusively.

General terms and conditions of the client will only apply if this has been expressly agreed

in writing. 

1.4 Quoted §§ (paragraphs) in these Terms and Conditions of Contract are such of these

General Terms and Conditions of Consultancy, unless otherwise designated in the text.

§2 SUBJECT MATTER OF THE CONTRACT, PERFORMANCE AND SCOPE OF

SERVICES

2.1 The subject of the contract is the agreed consulting work specified in the contract, not

the achievement of a certain economic success.

2.2 TLK Consulting renders its services with the diligence of a prudent businessman and

always related to the individual situation and the needs of the client. The client is aware that

every analysis of a company or market also implies imponderables.

2.3 TLK Consulting uses well-trained employees with the necessary expertise and

experience for assignments and supervises and controls them. Unless otherwise agreed,

TLK Consulting can use expert subcontractors for the execution of the order, whereby TLK

Consulting always remains directly obliged to the client. Unless otherwise agreed, TLK

Consulting decides at its own discretion which employees or subcontractors are used.

2.4 TLK Consulting does not owe and does not provide legal or tax advice or auditing.

§3 CHANGES IN PERFORMANCE

3.1 TLK Consulting will take into account change requests of the client related to the order,

as far as this is possible within the framework of its operational capacities and its consulting

offer and as far as the implementation of the change request is appropriate and reasonable

for it.

3.2 TLK Consulting may carry out minor project changes without prior consent of the client,

provided that these correspond to the presumed will of the client, are urgent and the client

cannot be reached in time. TLK Consulting will inform the client immediately about such

project changes and their effects.

3.3 Insofar as the effort of TLK Consulting is increased or the time frame of the project is

extended as a result of a change request of the client, the contracting parties undertake to

negotiate a corresponding reasonable adjustment of the contract and the remuneration. If

the contracting parties cannot agree on a remuneration for the services, the remuneration

due to TLK Consulting shall, in case of doubt, be increased in accordance with the

additional time and costs. 

3.4 If the examination of the project modification involves a considerable effort for TLK

Consulting, TLK Consulting can demand the conclusion of a separate order for this

purpose.

3.5 Clause 3.3 applies accordingly in case of a project modification according to § 3.2.

§4 COOPERATION OBLIGATIONS OF THE CLIENT

4.1 The success of the project requires close cooperation between the parties. Client will

continuously support TLK Consulting in the project work to the best of its ability. Client will

inform TLK Consulting comprehensively about the companies which are the subject of the

order and about all aspects essential to the project, and will continuously provide significant

documents and information or documents and information deemed necessary by TLK

Consulting in due time and in full.

4.2 The Client shall:

» provide TLK Consulting with complete, accurate and prompt answers to all questions to

the best of its knowledge which form an essential basis for TLK Consulting 's work on the

project.

» inform TLK Consulting without being asked and in good time - also in cases of doubt -

about all circumstances which may be of importance for the project, including the

subsequently arranged correction or updating of handed over documents.

4.3 In case of appointment of an Interim Manager provided or mediated by TLK Consulting,

the agreed duties of cooperation of the client are also to be fulfilled towards the Interim

Manager.

4.4 The client will immediately check interim results, documents, minutes of meetings etc.

submitted by TLK Consulting as to whether the factual information contained therein is

correct and complete to its knowledge. The client will inform TLK Consulting immediately in

text form of any necessary or desired corrections or additions.

4.5 The client undertakes to assure TLK Consulting in writing of the completeness and

correctness of the information provided to TLK Consulting at TLK Consulting 's request prior

to a presentation of the results by TLK Consulting to its knowledge (declaration of

completeness).

4.6 At the request of TLK Consulting the client will create the necessary and reasonable

organisational, legal and factual preconditions in the company which is the subject of the

contractual consultancy and in particular bring about the declarations required for § 5.5. If

required, he will provide TLK Consulting and its vicarious agents with suitable workplaces

on site, which allow undisturbed and confidential work (incl. desk, office equipment, PC,

telephone and, if necessary, integration into the company's internal communication system).

4.7 If and insofar as the client does not fulfil, does not completely fulfil or does not fulfil in

time his obligations to cooperate agreed with TLK Consulting despite request by TLK

Consulting, the following shall apply:

a) Additional expenses (time, costs) incurred by TLK Consulting as a result thereof will be

reimbursed by the client at the general fee rates agreed between the parties;

b) In serious cases TLK Consulting has the right to terminate the contract extraordinarily

after unsuccessful expiry of a reasonable period of time for the fulfilment of the duties to

cooperate. Further legal rights and claims of TLK Consulting remain unaffected.

§5 MAINTENANCE OF CONFIDENTIALITY BY TLK Consulting

5.1 TLK Consulting is obliged for 2 years from the time of conclusion of the contract to keep

confidential all information or business and trade secrets of the client designated as

confidential (hereinafter; "confidential information") which become known to it in connection

with an order. 

5.2 Unless an exception is regulated in this § 5, TLK Consulting may only hand over

confidential information and reports, expert opinions and written statements on the course

and results of its activities to third parties with the prior consent of the client.

5.3 The duty of confidentiality according to § 5.1 does not apply to confidential information if

and as far as:

a) these were already lawfully in the possession of TLK Consulting before disclosure and

without any obligation of secrecy;

b) these were lawfully transmitted to TLK Consulting after conclusion of the contract by a

third party without obligation of secrecy;

c) these have been published without the intervention of TLK Consulting or have otherwise

become generally known through no fault of TLK Consulting;

d) TLK Consulting is obliged to provide information to authorities, the judiciary or other third

parties due to mandatory legal provisions or official orders;

e) the client has agreed to TLK Consulting passing on the information.

5.4 TLK Consulting is entitled to disclose confidential information to the persons employed

by it for the execution of the order, in particular its employees and subcontractors as well as

persons professionally bound to secrecy, provided that TLK Consulting undertakes to bind

these persons to secrecy and data protection.

5.5 TLK Consulting is authorised to process personal data entrusted to it by the client as

well as its employees (e.g. details of name, address, date of birth, marital status, religious

denomination, status of disability, length of service, salary, membership of works council,

etc.) and financing partners, suppliers, customers, consultants as well as other persons or

companies used by the client (e.g. address, telephone/fax number, e-mail address, etc.)

within the scope of the intended purpose or to have them processed by third parties.

5.6 TLK Consulting is allowed to use the fact that a contractual relationship exists or has

existed between the client and TLK Consulting as well as its concrete activity as a

reference, in particular within presentations, events or in its company brochure.

§6 IMPEDIMENTS TO PERFORMANCE

6.1 In case of force majeure and other unforeseeable, extraordinary and non-culpable

circumstances (e.g. in case of unforeseeable material procurement difficulties, operational

disruptions, strikes, lockouts, lack of means of transport, official interventions, energy supply

difficulties and similar), any performance deadlines of TLK Consulting will be extended to a

reasonable extent. This does not apply if TLK Consulting is responsible for taking over,

precautionary or preventive measures. If the performance becomes impossible or

unreasonable for TLK Consulting due to the aforementioned circumstances, TLK Consulting

will be released from the performance obligation. 

6.2 TLK Consulting can only invoke the aforementioned circumstances if TLK Consulting

informs the client thereof without delay.

6.3 §6.1 applies accordingly if an employee of TLK Consulting who is contractually

designated for the project - unforeseeable at the time of conclusion of the contract and for

which TLK Consulting is not responsible - is absent. If this employee is permanently or for a

longer period prevented from providing the service, TLK Consulting is entitled to provide an

employee with at least the same skills as a substitute. 

6.4 If delays in performance according to § 6.1 to § 6.3 become unreasonable for the client,

he can set TLK Consulting a reasonable deadline for the commencement and/or

continuation of the contractual activities and after fruitless expiry of this deadline terminate

the contract extraordinarily according to § 13. TLK Consulting 's claim to remuneration for

services already rendered remains unaffected by this.

6.5 As far as TLK Consulting is responsible for impediments to performance, it is only liable

according to § 12.

§7 FIDUCIARY DUTY AND ASSURANCE OF INDEPENDENCE

7.1 The parties commit themselves to mutual loyalty. They shall inform each other without

delay of all circumstances arising in the course of the execution of the project which may

influence the processing.

7.2 The client vouches that the companies affiliated with him as well as his and their

employees refrain from everything which could endanger the independence of the

employees of TLK Consulting. In particular, the direct or indirect enticement of TLK

Consulting 's employees or former employees is to be refrained from within 24 months after

termination of the cooperation with TLK Consulting.

7.3 For each case of violation of the prohibition according to § 7.2 the client has to pay a

contractual penalty in the amount of 10.000,- Euro. In case of a continuous violation the

contractual penalty shall be deemed to be newly forfeited for each month commenced.

TLK Consulting reserves the right to claim further damages or other rights (e.g. injunctive

relief).

§8 USE OF RESULTS / PROTECTION OF INTELLECTUAL PROPERTY

8.1 The client guarantees that the reports, expert opinions, organization plans, drafts,

drawings, lists and calculations made by TLK Consulting within the scope of the order will

only be used for the contractually agreed purposes and will not be edited, translated,

reprinted, passed on or distributed without the express written consent of TLK Consulting in

the individual case. The use of the consulting services rendered for companies affiliated

with the client requires an explicit written agreement.

8.2 Insofar as work results are copyrightable, TLK Consulting remains the author. In these

cases the client receives the irrevocable, exclusive and non-transferable right of use to the

work results, which is only limited by § 8.1, sentence 1, otherwise unlimited in time and

place.

§9 Passing on of professional statements by TLK Consulting

9.1 The passing on of information and consulting services (hereinafter collectively

"consulting contents") of TLK Consulting (including e.g. reports, expert opinions,

organisation plans, drafts, drawings, lists, calculations, etc.) made within the scope of or in

connection with the order by the client to a third party requires the written consent of TLK

Consulting, as far as the consent to the passing on to this third party does not already result

from the contents of the contract.

9.2 The use of consulting contents of TLK Consulting by the client for advertising purposes

is inadmissible; a violation entitles TLK Consulting to extraordinary termination of the

contractual relationship and all other orders of the client not yet completely executed.

Further claims of TLK Consulting remain unaffected in this respect.

§10 FEE, ADDITIONAL COSTS, DUE DATE, DEFAULT

10.1 The amount and the kind of the fee will be regulated in principle by individual contract.

In the event that no arrangement has been made, the following fee rates shall apply:

» GF 400,-- / hour,

» Partner 312,50 / hour,

» Principal 250,-- / hour,

» Project Manager 225,-- / hour,

» Senior Consultant 200,-- / hour,

» Consultant 175,-- / hour,

» Other (research, assistance, presentation preparation) 100,-- / hour,

in each case plus statutory VAT and the flat rate for incidental expenses pursuant to 10.3.

The hourly rates apply to both working and travelling time. A detailed time sheet can be

requested at short notice at any time if required.

10.2 If the term of the contract exceeds a period of 12 months and TLK Consulting invoices

on a time and material basis, the fee rates will increase by 3 % at the beginning of each

new contract year after conclusion of the contract.

10.3 Unless otherwise agreed, the ancillary costs amount to a flat rate of 15 % of the net fee

turnover. The incidental costs include travel expenses in Germany as well as costs for the

necessary access to research facilities (databases, fees for file inspections, etc.),

communication and office management. Fees for travel time are not included and will be

invoiced according to § 10.1 from the TLK Consulting office closest to the client.

Furthermore, the agreed rental and use of electronic data rooms, specialised databases

and/or other agreed external services are not included. Incidental costs will be invoiced

together with the fees.

10.4 Agreed down payments are due immediately upon invoicing and before

commencement of services and will be set off by TLK Consulting against the consulting

services closest in time. Insofar as further down payments have been agreed, TLK

Consulting will invoice these in good time in each case so that an interruption of

consultancy services is avoided.

10.5 Other fee invoices are due upon receipt by the client and are payable within 7 calendar

days. If the due date of an agreed fixed fee depends on the presentation of agreed results,

the due date shall also occur if the Client no longer accepts results already prepared (e.g.

as a result of termination of the contract at short notice) on the agreed date. 

10.6 The statutory value added tax shall be added to all price quotations and shown

separately in the invoices.

10.7 Several clients shall be jointly and severally liable.

10.8 A set-off of the client against claims of TLK Consulting is only permissible with

undisputed or legally established claims.

§11 DEFECTS, STATUTE OF LIMITATIONS

As far as TLK Consulting owes an analysis or an expert opinion or any other defined work,

the following applies in addition:

11.1 Insofar as the services are defective, the customer has a right to rectification by TLK

Consulting in accordance with the statutory provisions.

11.2 In case of repeated failure of the rectification the client can also demand reduction of

the remuneration or cancellation of the contract. The client can only demand cancellation of

the contract if the service rendered is of no interest to him due to failure of the rectification.

Section 12 shall apply to any further claims for damages.

11.3 The aforementioned warranty rights of the Principal shall become statute-barred, with

the exception of claims for damages, 12 months after the statutory commencement of the

limitation period. 

§12 LIABILITY, LIMITATION

12.1 TLK Consulting is liable to the client, irrespective of the legal basis, for the damages

caused by and for which TLK Consulting, its legal representatives and vicarious agents are

responsible as follows:

12.2 TLK Consulting is liable according to § 12.1 for damages resulting from injury to life,

body or health.

12.3 TLK Consulting is liable according to § 12.1 for other damages caused intentionally or

by gross negligence. Liability for slight negligence exists in these cases only in case of

violation of essential contractual obligations and is then limited to the compensation of the

contract-typical and foreseeable damage. 

12.4 In all other cases of damage and liability not covered by the above liability regulations,

TLK Consulting 's liability is excluded. 

12.5 TLK Consulting is not liable for the improper application or implementation on the part

of the client of the recommendations given within the scope of the services or in the working

documents of TLK Consulting.

12.6 As far as the liability of TLK Consulting is excluded or limited according to this contract,

the same applies to the personal liability of its legal representatives, employees and

vicarious agents.

12.7 §§ 11 and 12 apply accordingly to any claims for compensation of futile expenses (e.g.

§ 284 BGB).

§13 TERMINATION

13.1 As far as nothing else has been agreed by contract and as far as TLK Consulting does

not owe the creation of a work in the sense of § 11 (in this respect the legal regulations

apply), the contract can be terminated by both parties with a notice period of 14 days to the

end of the month. The right to extraordinary termination shall remain unaffected.

13.2 The following in particular shall be considered as extraordinary grounds for

termination 

- in the event of a lack of agreement on the remuneration in the event of necessary

substantial changes to the project;

- in case of default of acceptance and delays in payment by the client, provided that TLK

Consulting has unsuccessfully set a reasonable deadline for performance by the client;

- if a substantial deterioration or a substantial endangerment of the financial circumstances

of the client occurs, in particular if the client stops or declares to stop payments, or if the

client has filed for insolvency or if insolvency proceedings have been opened or rejected for

lack of assets.

13.3 In the event of extraordinary termination by TLK Consulting due to conduct of the client

in breach of the contract, the client shall owe TLK Consulting compensation for all damages

caused by the premature termination of the contract, including loss of profit. 

13.4 The termination must be in writing to be effective.

§14 RETENTION, STORAGE OF DOCUMENTS

14.1 Until full settlement of its claims TLK Consulting has a right of retention of the

documents handed over to it, the exercise of which, however, is contrary to good faith if the

retention would cause disproportionately high damage to the client which cannot be justified

when weighing both interests.

14.2 After settlement of its claims under the contract, TLK Consulting shall, at the client's

request, surrender all documents which the client has handed over to it (itself or via a third

party) on the occasion of the execution of the order. This does not apply to the

correspondence between the parties and to simple copies of reports, organisation charts,

drawings, lists, calculations etc. made within the scope of the order, provided that the client

has received the originals.

14.3 TLK Consulting 's obligation to keep the documents expires six months after

termination of the contractual relationship. Legal obligations to keep records remain

unaffected.

§15 SUPPLEMENTARY PROVISIONS

15.1 This contract is exclusively governed by German law excluding the UN Convention on

Contracts for the International Sale of Goods and excluding conflict of laws references to

other legal systems.

15.2 Place of performance is the registered office of TLK Consulting. The place of

jurisdiction for all disputes arising from or in connection with this contract is the registered

office of the TLK Consulting branch concluding the contract, provided that (i) all clients are

merchants, legal entities under public law or special funds under public law and there is no

common place of jurisdiction with them, (ii) in all other cases only if the client or clients do

not have a domicile in Germany.

15.3 The language of presentations, documents, reports, expert opinions, analyses, etc.

shall be German.

15.4 Amendments or supplements to a contract referred to in § 1.1 as well as in individual

cases to these General Terms and Conditions of Consultancy shall require text or written

form, unless a stricter form is mandatory by law. The exchange of e-mails to notified e-mail

addresses satisfies the form requirement agreed herein. This shall also apply to any

amendment of this written form requirement. 

15.5 The client may assign rights from the contractual relationship with TLK Consulting only

after prior written consent by TLK Consulting.

15.6 Should individual provisions of this contract be or become invalid or unenforceable in

whole or in part, this shall not affect the rest of the contract. Instead of the invalid or

unenforceable provision, a provision shall be deemed agreed which objectively comes as

close as possible to the economic purpose of the invalid or unenforceable provision. The

same shall apply in the event of the occurrence of a gap in the contract that needs to be filled.