As of February 1, 2018
§ 1 Scope
These Terms and Conditions govern the performance of consulting services by consultants provided by Consultport GmbH, having its seat in Rheinsberger Str. 76/77, 10115 Berlin, and registered in the commercial register of the District Court of Charlottenburg under No. HRB 179966 B (“CONSULTPORT”), and the use of the platform www.consultport.com (the “Platform”). Any deviations require the express consent of CONSULTPORT.
These Terms and Conditions apply companies in accordance with Sec. 310, para. 1 and Sec. 14 of the German Civil Code (BGB).
Unless agreed otherwise, the Terms and Conditions in the version effective at the time of the CLIENT’s registration or in the version most recently communicated to it in text form are deemed to be a framework agreement for the provision of consulting services. This framework agreement sets out general framework terms. The specific services are provided on the basis of individual agreements, which specify in particular the type and scope of the respective service as well as the fee payable (an “individual agreement”).
§ 2 Subject matter
CONSULTPORT will provide the CLIENT with consultants who perform consulting services for the CLIENT on behalf of CONSULTPORT. The consultants working on behalf of CONSULTPORT are self-employed individuals (natural persons) or consultants employed by a consulting company (the “CONSULTANT”). The professional services include in particular consulting and support of the CLIENT in the implementation and accomplishment of the project as described in more detail in the respective individual agreement.
§ 3 Execution of an agreement
The CLIENT may inform CONSULTPORT via the Platform, by phone, or by email that it needs advice and is looking for consultants for projects (“project need”). The CLIENT provides in this case the most accurate possible project description; in particular, the project goal, project duration, project location, project budget, and the required consulting expertise should be specified (the “project description”). On the basis of the project description and, where appropriate, further consultations, CONSULTPORT will search for, and make requests to, suitable CONSULTANTS and offer the CLIENT to execute an individual agreement setting forth in particular the following information:
- name of the CONSULTANT
- qualification and experience of the CONSULTANT
- daily rate
The CLIENT may personally meet the respective CONSULTANT(s) by agreement with them. The CLIENT may accept CONSULTPORT’s offer within five business days upon the receipt of the offer to execute an individual agreement or make a counteroffer to CONSULTPORT. CONSULTPORT may accept the counteroffer subject to the relevant proposed CONSULTANT’s consent within further five business days upon the receipt of the offer to execute an individual agreement.
§ 4 Consulting services
The services of the CONSULTANT are described in more detail for each project in an individual agreement. CONSULTPORT does not provide such consulting services by itself but assigns them to the CONSULTANT. The CONSULTANTS are not permanently employed by CONSULTPORT but act as CONSULTPORT’s contractors.
§ 5 Fee and billing
The CLIENT will pay CONSULTPORT for the contractual services the fee stipulated in the respective individual agreement. The billing is based on the CONSULTANT’s daily or hourly rates. In particular cases, the parties may also agree on a fixed fee for individual projects. The agreed fee does in general still exclude the then applicable value added tax.
CONSULTPORT will invoice the contractual services on a monthly basis. Each invoice contains the services rendered by the CONSULTANT in the respective billing period. The fee is payable to CONSULTPORT’s account within 30 days of receiving the invoice.
CONSULTPORT reserves the right to claim default interest at 9 percentage points above the applicable base interest rate.
§ 6 Loyalty arrangement and prohibition of circumvention
The CLIENT is prohibited, whether directly or indirectly and whether personally or through third parties, from entering into consulting agreements with the CONSULTANTs provided by CONSULTPORT (the “Loyalty Arrangement”). This prohibition applies for the duration of the CONSULTANT’s services to the CLIENT and for 18 months after the termination of those services of the CONSULTANT to the CLIENT (the “protection period”).
The CLIENT undertakes to notify CONSULTPORT in writing if it engages the CONSULTANT for the first time or repeatedly during the protection period. This applies also to mediation of services or other consultants and experts contacted or informed by the CONSULTANT, provided such mediation is intended to make profit.
If the CONSULTANT and the CLIENT enter into a contract during the protection period and in circumvention of CONSULTPORT, then CONSULTPORT is entitled to a contractual penalty of double the total project fee plus value added tax. The above penalty applies accordingly to any further breach of the Loyalty Arrangement.
§ 7 Permanent employment of the CONSULTANT
If the CLIENT wishes to permanently employ a CONSULTANT mediated or proposed by CONSULTPORT during the protection period, the CLIENT must pay a commission amounting to 30% of the gross annual salary including variable remuneration of the CONSULTANT (plus value added tax). Payment must be made within 30 days of commencement of the relevant employment relationship.
§ 8 Rights of use
If and insofar as works specifically created for the CLIENT (the “Deliverables”) result from the provision of the contractual services, CONSULTPORT grants the CLIENT the non-exclusive right of use, unlimited in terms of space, time, and content, to the respective Deliverable applicable for all types of use, with full payment of the agreed fee due for this project.
§ 9 Protection of confidential information
The parties will maintain confidentiality with respect to all in-house transactions and confidential matters of the other party, in particular business and commercial secrets, of which they become aware in the course of their cooperation. The confidentiality obligation survives the termination of this Agreement. CONSULTPORT will in particular impose the appropriate confidentiality obligation on the CONSULTANTS provided to the CLIENT.
This obligation does not apply to the Confidential Information
a) that was verifiably already known to the recipient at the time of the execution of this Agreement or thereafter disclosed by a third party without any breach of the confidentiality agreement, statutory provisions, or regulatory requirements;
b) that is publicly known at the time of the execution of this Agreement or becomes publicly known thereafter through no breach of this Agreement; and
c) that is required to be disclosed by law or by order of a court or public authority. To the extent permitted and possible, the receiving party required to make a disclosure will inform the other party in advance and enable it to challenge the disclosure.
CONSULTPORT may publish an anonymous short description of the project on the CONSULTPORT website without naming the CLIENT but specifying the project subject, industry, and project duration.
§ 10 Term
This Agreement commences upon the CLIENT’S registration on the Platform and remains in effect indefinitely. It may be terminated by either party at the end of a month by giving four weeks’ notice. The right to immediate termination for good cause remains unaffected. A failure to pay an invoice within the agreed period and a conviction for a crime are deemed, inter alia, to be a good cause.
A termination of the Framework Agreement does not affect any individual agreements concluded on its basis if the term of an individual agreement as specified therein is other than that of this Framework Agreement.
§ 11 Liability
CONSULTPORT is liable for breach of contractual and non-contractual obligations by CONSULTPORT as provided by law. CONSULTPORT is liable for damages – on any legal ground whatsoever – in the case of intent and gross negligence. In the case of less than gross negligence, CONSULTPORT is only liable
a) for damages resulting from fatalities, physical injuries, or damage to health and
b) for damages resulting from a breach of a material contractual obligation (obligation the fulfillment of which is crucial for performing a consultancy contract properly and on the compliance with which CONSULTPORT regularly relies and may rely (essential contractual obligation)).
CONSULTPORT’S liability, for any reason whatsoever, is limited to the respective project volume (in Euros) as specified in the service offer.
The website www.consultport.com also contains links to websites maintained by third parties and the content of which CONSULTPORT may not be aware of. Links to third-party websites are only for the convenience of navigation. CONSULTPORT assumes no liability for the content of third-party websites.
CONSULTPORT assigns to the CLIENT already now all claims for performance and claims for defects it has against its contractors. Such assignment includes also future collateral. The CLIENT accepts the assignment.
§ 12 Data privacy protection
The parties undertake to comply with the applicable data privacy protection regulations. If CONSULTPORT processes personal data on order of the CLIENT, the parties will conclude the necessary order processing agreement separately. The parties warrant that they have imposed confidentiality obligations on persons authorized to process personal data or that they are subject to an appropriate statutory confidentiality obligation.
§ 13 Governing law and venue
This framework agreement is governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on the International Sale of Goods. As far as permissible, the legal venue is Berlin.
§ 14 Amendments and supplementary agreements
This framework agreement sets out all arrangements between CONSULTPORT and the CLIENT with respect to its subject matter. Any supplementary agreements and amendments hereto, including this clause requiring the written form, must be in writing.
§ 15 Severability
Should any of the above provisions be invalid, this does not affect the validity of the remaining provisions. The invalid provision must be replaced by a valid provision that corresponds to its intended economic purpose.