1. Scope of Application
The following General Terms and Conditions apply to all legal transactions of RUCON Management GmbH with its contractual partner – referred to hereinafter as Client. RUCON Management GmbH will not recognize any conditions contrary to these General Terms even if such conditions do not expressly contradict the terms therein, nor if the Contractor has made references to such conditions in writing.
If there are individual contractual provisions that deviate from the provisions of these General Terms or are inconsistent with them, the provisions of the individual agreement will take precedence.
2. Subject Matter of the Agreement
2.1 Parties to the contract agree to cooperate in accordance with the specific, individual contractual agreement. The parties do not require an employment contract and will not establish one.
2.2 RUCON Management GmbH takes on the responsibility of covering the social security contributions or other tax-related issues and exempts the Client from any possible liabilities.
2.3 RUCON Management GmbH is at liberty to provide services to other clients as well.
3. Formation of the Contract
3.1 RUCON Management sends the Client an offer, to which RUCON Management will remain committed for four (4) weeks starting the offer’s date of issue, provided that a longer period of commitment is not indicated in the offer. A binding order will come into effect when the Client signs and returns the offer to RUCON Management within this time period, or when the Client declares their acceptance of the offer to RUCON Management (order). RUCON Management reserves all the rights to the offer documents unless those rights are also granted to the Client by way of an explicit agreement between the parties.
3.2 RUCON Management GmbH is wholly responsible for the project management services that are to be provided. RUCON Management and the Client will each appoint the persons in charge of the mutual project management. RUCON Management is responsible for selecting the RUCON Management’s employees who will be appointed to a project within the framework of the required qualifications agreed upon. The Client is entitled to reject the employees selected by RUCON Management if there are plausible reasons for rejecting an employee inherent in the person of that employee. The Client must bring those reasons to the attention of RUCON Management. In such case, RUCON Management is obliged to appoint a different employee to the project. In urgent and operationally justified cases, RUCON Management is entitled to exchange the employees, for the duration of a respective order, who are appointed to a project for performing services. The Client will have to be notified of such exchange.
3.3 The Client will provide RUCON Management in time with any information, documents and access points that RUCON Management needs for performing the services, to which they have contractually committed themselves. If RUCON Management delays in performing services that have been agreed on for reasons within the Client’s scope of responsibilities (e.g. if the Client cancels or ignores scheduled appointments) and RUCON Management is faced with additional or wasted expenditure as a result (together referred to as “additional expenses”), the Client will reimburse RUCON Management for these additional expenses in accordance with the daily rates calculated for the project.
3.4 In case of disagreements between RUCON Management GmbH and the Client concerning the significance of provisions or how they are to be carried out within the context of executing the order, and how these disagreements might affect the services of RUCON Management or the involvement of the Client, the parties will assign a member of their respective management or an authorized representative of the management, in order to reach an agreement together.
4. Duration of Contract and Notice of Termination
4.1 The contract takes effect once the Client accepts the offer, and it ends at the time specifically agreed on, which as a rule corresponds to the time when the purpose of the agreement is fulfilled. RUCON Management will notify the Client when the order is completed.
4.2 It is possible to terminate without notice due to compelling reasons. A reason can be considered as compelling if
- the Client is in arrears with two consecutively due payments, and fails to settle the payments after a reasonable period of grace.
- the Client gets into a financial collapse after the contract is signed (inability to pay, insolvency).
5. Scope of Services, Obligations of Parties to the Contract
5.1 The services that RUCON Management GmbH is obliged to perform comprise as a rule the tasks listed in the offer of RUCON Management in accordance with the order placed by the Client. Assigning tasks different from those declared in the order is subject to the written consent of RUCON Management regarding the changes. The services will be updated in work packages by RUCON Management GmbH and the Client, especially in case of longer projects, until the project’s objective is accomplished and the objection period to the project’s acceptance expires, or the acceptance is declared in a different way.
5.2 The project leader will evaluate the project’s progress in line with 3.2, accepts work packages and updates them based on the details documented in the offer of RUCON Management. The documentation is done within the framework of a project plan agreed on as a rule between RUCON Management and the Client.
5.3 RUCON Management GmbH will inform the Client about the results of their activities at regular intervals. The parties to the contract can set a schedule in the contract for the services that are to be performed as well as a fixed date for the completion of the services. This is done as a rule through project reports or project status meetings. The dates, however, are not meant as contractual deadlines.
5.4 If RUCON Management GmbH is actually unable to perform the services they are contractually obliged to, they must inform the Client about that immediately.
5.5 RUCON Management GmbH will provide the information, material and the personnel necessary for performing the services. The Client is obliged to cooperate with RUCON Management within the context of the project, which means providing information, material and the personnel necessary to achieve the project’s objectives.
The parties to the contract will support one another to the best of their knowledge and ability by providing each other with any information, details and experience necessary for performing their respective duties and services, and will thus ensure a smooth and efficient workflow for both parties.
5.6 Each party to the contract can file for changes in the scope of services that has been agreed on with the other party by fax, email or in writing. After receiving a change request, the party receiving it will check to see if and under what conditions the requested change is feasible, and will immediately inform the person requesting the change in writing regarding its approval or rejection, and provide justification as the circumstances require. If a change request of the Client requires a comprehensive examination, RUCON Management GmbH can charge the Client for the effort and expenditure necessary for the examination if announced in advance, provided that the Client insists on examination of the change request nevertheless.
If needed, the necessary contractual adjustments of the conditions and services that have been agreed on for an examination and/or a change will be laid down in writing in a change-agreement and will take effect in compliance with these General Terms and Conditions.
6. Acceptance, Testing and Notice of Defects
6.1 The Client will confirm having received deliverables by fax, email or in writing, and providing the deliverables correspond to services ready for acceptance or if acceptance has been agreed on, the Client will declare the acceptance of the deliverables in writing after successfully completing the acceptance test. The review period is two (2) weeks after the deliverables are received unless otherwise agreed on. RUCON Management will be available to clarify possible questions to a reasonable extent during the acceptance period in line with the order. A deliverable is considered as accepted if the Client does not inspect the deliverable within the review period, or does not declare that they refuse to accept the deliverable due to significant defects, or that they are not obliged to accept due to other reasons. The Client will have to appropriately specify deficiencies that have been claimed for every case. The Client must not refuse to accept deliverables due to insignificant defects; insignificant defects will be corrected by RUCON Management during supplementary services.
6.2 The Client will not examine the deliverables and other services performed by RUCON Management within two (2) weeks after their delivery either, and will inform RUCON Management in writing at the latest upon expiry of the review period about the deficiencies that have become apparent as a result of such examination. If the Client leaves out this notification, the deliverable and other services in view of the apparent defects will be considered as approved in accordance with the terms of the contract.
6.3 The timely dispatch of the notification will be deemed as sufficient. This paragraph is inapplicable if RUCON Management GmbH has fraudulently concealed a defect.
7. Claims of the Client on Account of Poor Performance
7.1 If the deliverables that have been agreed on are in form of performance or purchasing services, RUCON Management must ensure that the deliverables correspond to the performance description in the order (that they especially correspond to the task description in the form compliant with the changes in services if necessary).
7.2 In case of poor performance, RUCON Management is entitled to first provide supplementary services within a suitable deadline set by the Client; RUCON Management can do that at their own discretion by either improving on or redoing the respective services (e.g. providing a new service or making a new deliverable). If two consecutive attempts to correct a deficiency fail within an appropriate deadline, or if RUCON Management refuses to perform the necessary improvements within a suitable period, the Client will be at liberty to assert other legal claims for defects (that includes especially reducing payment or withdrawing from the contract, at the Client’s discretion) or to assert other legal claims due to poor performance.
7.3 If RUCON Management is liable for damages suffered by the Client in line with section 7 or has fraudulently concealed a defect, these claims for damages and defects will come under the statute of limitations compliant with the statutory period of limitation. All other claims for defects and any other claims due to poor performance will come under the statute of limitations within one year starting from the statutory period of limitation.
8.1 RUCON Management grants the Client a non-exclusive, non-transferable and non-sublicensable right to use the deliverables for the contractually prescribed or agreed purposes without any restrictions in terms of time, place and content. The other rights and claims to deliverables, inventions in connection with the deliverables of RUCON Management or the created copyrighted works and services remain with RUCON Management. The rights to depicted trademarks connected with the deliverables remain exclusively with their copyright owners; RUCON Management GmbH does not grant the Client the right to use them.
8.2 The application of copyright will not be restricted by contractual regulations, unaffected by the right of use.
8.3 Confidential information within the meaning of section 9 remain the property of the party disclosing it or that of the respective third party; the Client will acquire the right to use the confidential information from RUCON Management only as a part of deliverables in accordance with section 8.1 above, and only by ensuring the agreed upon obligation to nondisclosure as pertaining to section 8.1.
9. Confidentiality, Information Classification
9.1 RUCON Management GmbH will not disclose any issues, facts or data that they become aware of in connection with executing this order, nor will they pass on such information to a third party. This obligation to nondisclosure will apply to all employees of RUCON Management GmbH. All employees of RUCON Management GmbH are obliged to declare in writing their compliance with the guidelines of nondisclosure, as well as the secrecy of telecommunications, banking, social data and correspondence.
9.2 Obligation to nondisclosure does not apply if and to the extent that the relevant information verifiably
- is in public domain
- has become a matter of common knowledge not as a result of wrongdoing by any of the parties obliged to nondisclosure, or
- has been or is being rightfully obtained by a third party, or
- is already in the possession of the party receiving it.
9.3 The parties are aware that
- violating confidentiality with regard to business and trade secrets is subject to punishment under sections 17 and 18 of UWG (protection against Unfair Competition Act), and
- anyone who violates business and trade secrets must provide compensation for the resulting damages in line with section 19 of UWG.
9.4 If any information, no matter in what form, has been exchanged by mistake between the contracting parties, the Contractor and the Client must see to it that such information is not used and is removed from their respective systems. The obligations under 9.3 apply also in case of mistakes.
9.5 RUCON Management GmbH uses the following levels for classifying information:
- Public – this includes any information that is publicly available and is suitable for releasing, or information that has become public either during the contractual commitment or before it.
- Internal – this refers to any information that is neither public, nor subject to further classification. Such information is subject to our nondisclosure agreement and is used by RUCON Management GmbH and their contracting parties exclusively for fulfilling the contractual purposes.
- Confidential – this refers to every project-information of the Client, provided that nothing different has been agreed on. Such information is available only to those employees of RUCON Management GmbH who are directly involved with the execution of the project. Confidential information is any information labeled by the Client as “confidential” or such that is obviously of confidential nature, e.g. business and trade secrets, information about products, intellectual property or concepts, also information from any third party that the Client makes available to RUCON Management).
- Strictly confidential – this includes any information that is made available exclusively to persons designated by name. This is as a rule agreed on separately with the Client.
9.6 The parties to the contract undertake to use the confidential information exclusively for the purpose of executing the order and only for the purposes agreed on therein, and they will copy material only to the extent necessary to fulfill those purposes, and they will not make such information or copied material available to a third party without the explicit written consent of the party disclosing the information. A third party within the context mentioned above refers to all natural and legal persons except the following:
- Employees, subcontractors and other businesses connected with the receiving party in terms of section 15 of the Stock Corporation Act, who need to be familiar with confidential information for executing the respective order and/or for achieving the purposes agreed on or stipulated in the contract, provided that they have bound the receiving party to nondisclosure in compliance with section 9, and
- External parties, who are bound to nondisclosure due to the nature of their work for the receiving party such as their advisors, lawyers, tax accountants and auditors.
Passing on confidential information to a third party would also be allowed if the receiving party is obliged to do so due to mandatory legal regulations, non-appealable court decisions or legally binding administrative files. The party receiving such information will immediately inform the party disclosing it.
9.7 The receiving party will apply at least the same care and protective measures with regard to nondisclosure of confidential information that they would for protecting their own confidential information of the same type, no less than the same care and due diligence common in the business. They will take all the proper measures to protect the confidential information and make sure the information is not published, reproduced or used by unauthorized persons.
9.8 The obligation to nondisclosure of confidential information and the restriction of its use compliant with this section 9 will apply for as long as the confidential nature of the information remains valid in line with section 9.2. Before the restrictions on nondisclosure and use expire, the wide-ranging rights of the parties remain unaffected, especially their patent rights, trademarks and copyrights.
10. Data Protection
10.1 The law (section 3, paragraph 1 of FDPA) defines personal data as details of personal or material circumstances of a specific or specifiable natural person. When you visit our website, we collect data that as such its reference to a person cannot be ruled out; and there is personal data on the other hand that can be transmitted to us by your own actions.
Personal data is collected only within the context of a project and the handling of that project, and it is stored for a period of 12 months after the completion of the project. As a rule, personal data consists of the name, position, business phone number, business email address and the business address of a person. In certain cases, the Client’s employees might also let us know how to reach them privately to facilitate the project’s execution. We do not collect sensitive personal data as a rule. If that becomes necessary in a special case, it will be coordinated with the Client in a separate agreement.
10.2 If RUCON Management, within the context of an assignment, arranges for data to be processed (in line with section 11 of the Federal Data Protection Act), the Client must bring about the necessary contractual provisions with RUCON Management before the acquisition of the order data processing. In such case, RUCON Management acts only in relation to the contract and sees to it that the necessary technical and organizational measures are taken in line with section 9 of the Federal Data Protection Act.
10.3 We store personal data exclusively within the legal domain of the European Union.
10.4 RUCON Management uses the accessibility data of the Client’s contact persons also for the purpose of soliciting customers This is done in line with currently applicable data protection laws.
10.5 One can revoke the consent given for the use and processing of personal data at any time. A simple notice in writing is sufficient to that end.
11. Prices and Terms of Payment
11.1 Services will be due and charged at the fees individually listed in the contract either after the completion of those services or on monthly basis, provided that nothing different has been agreed on in the contract about invoicing.
11.2 The specified valuation prices for services on the basis of time and material, especially in cost estimates are non-binding. The bill of quantities derived from an estimate are based on an evaluation of the scope of services conducted to the best of our knowledge. The services will be invoiced in accordance with actual expenditure based on proof of performance in 1-hour-increments, provided that nothing different has been agreed on.
11.3 If the Contractor and the Client agree on a schedule within the context of a project, the parties to the contract are obliged to announce any change requests they might have to the other party as fast as possible.
If the Client cancels a deadline no more than 14 calendar days before the schedule already agreed on, 20 percent of the order value (order value corresponds to the loss of fee for relevant and planned consultation days and traveling expenses that the Contractor can no longer be reimbursed for, as well as cancellation fees) will be invoiced; if the deadline is cancelled at the latest 5 calendar days before the schedule already agreed on, 50 percent of the order value will be invoiced; and if the deadline is cancelled in less than five calendar days before the schedule already agreed on, the complete order value will be invoiced.
11.4 Unless otherwise agreed, traveling expenses within Germany will be invoiced based on using the German Rail in 1st class or using a car amounting to 0.45 €/km. Necessary overnight stays (overnight stays before and/or during events) will be invoiced based on expenditure unless otherwise agreed. Necessary trips abroad will always be invoiced based on actual expenses.
11.5 The VAT will be invoiced in accordance with the rate of VAT applicable at the time that services are performed. Earnings based on the reverse-charge mechanism are exception to this rule.
11.6 Invoices are payable in full upon receipt. If the invoiced amount is not settled within 21 days after the date of invoice, RUCON Management GmbH is entitled to claim for interest on arrears. Interest on arrears comes to 8 percentage points p.a. in accordance with the base interest rate applicable at the time of invoicing.
12.1 We guarantee the proper performance of our services in accordance with the latest know-how. In addition, our warranty covers the application of scientific prudence and ensures compliance with the generally recognized norms and rules of technology.
12.2 RUCON Management GmbH accepts liability in case of deliberate or gross negligence in compliance with legal provisions. The liability for warranties is regardless of culpability. In the event of ordinary negligence, RUCON Management GmbH accepts liability explicitly in accordance with the rules of Product Liability Act, for injury to life, body or health or for the violation of fundamental contractual obligations. Damage claims for slightly negligent violation of fundamental contractual obligations are limited however to predictable damages typical for the contract, provided that the liability is not for injury to life, body or health. RUCON Management is liable for damages caused by subcontractors and representatives to the same extent.
12.3 The provisions of the paragraph above (12.2) extend to damages in addition to services, compensation instead of services, and claim for compensation due to wasted expenditure, irrespective of their legal grounds, including liability for defects, delay or impossibility of performance as well as to liability at completion of contract and violation of contractual collateral duties.
12.4 RUCON Management GmbH has a liability insurance with a guaranteed sum of 5.000.000,00 euros, and another 500.000 euros for financial losses. If the Client considers these sums to be insufficient, they will have to agree on a separate limit of liability with RUCON Management before the assignment.
12.5 Violation of essential duties in terms of this section 12 include violations that endanger achieving the purposes of the contract, especially the negligent breach of cardinal obligations, in other words essential contractual duties of one party, the fulfillment of which enables the proper implementation of the contract, and on the consistent execution of which the other party can and should be able to rely as a rule.
13. Place of Jurisdiction
13.1 The place of jurisdiction is the registered business office of RUCON Management, provided that the Contractor is also a businessman, a legal entity under public law or of special fund under public law. The same applies if the Contractor does not have a general place of jurisdiction in their home country, or move their place of business offshore after the formation of contract. RUCON Management is entitled to take legal action against the Contractor also in other admissible places of jurisdiction.
13.2 All claims and rights under this contract are subject to the laws of the Federal Republic of Germany (BGB ‘German Civil Code’, HGB ‘German Commercial Code’). The validity of the UN sale of goods law (CISG) and the conflict of legal provisions of EGBGB (Introductory Act to the German Civil Code) are explicitly excluded. The language of the contract is German.
14. Other Provisions
14.1 Verbal agreements are not valid if they contradict these General Terms and Conditions.
14.2 The German version of this document and the general business correspondence might mainly use the masculine form of nouns, but only for the purpose of making documents easier to formulate and read. What is written, however, applies to all genders alike without any value judgment.
14.3 Changes to these Terms and the respective order, as well as the cancellation of and withdrawal from the order do not take effect unless they are made available in writing. That also applies to a waiver of this written form requirement. A statement in form of a fax, an email or a writing for this purpose signed by the respective party addressed to the other party that includes the fax number, email address or the postal address would be sufficient to comply with the written form requirement.
14.4 If any provisions of these Terms and Conditions or the respective order become ineffective or cannot be enforced or contain any loopholes, the other provisions of these Terms and Conditions and those of the respective order will remain unaffected and applicable. The parties agree to replace such ineffective provisions by other provisions that can be enforced, which would correspond to what the two parties would have agreed to in good faith, considering the purpose of the agreement, if they had known about the invalidity of such provisions when the order was placed. That accordingly applies also to provisions and loopholes that cannot be enforced.