As of 01/02/2018
§ 1 Scope
These Terms and Conditions govern the cooperation of independent consultants and consulting companies (the„CONSULTANT“)with CONSULTPORT GmbH, having its seat in Berlin and registered in the commercial register of the District Court of Charlottenburg under No. HRB 179966 B („CONSULTPORT“), and the use of this website www.consultport.com („Platform“) erfolgt auf Grundlage dieser Allgemeinen Geschäftsbedingungen.
These Terms and Conditions apply only to entrepreneurs 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 CONSULTANT’s registration or in the version most recently communicated to the CONSULTANT in text form are deemed to be a framework agreement for the provision of consulting services.
CONSULTPORT and the CONSULTANT further conclude an individual agreement for each project where terms applicable to each project, in particular financial terms, are individually agreed.
§ 2 Subject matter
These Terms and Conditions apply to the provision of consulting services as part of projects with CONSULTPORT’s clients (the “CLIENT”) (collectively the “Consulting Framework Agreement” or “Framework Agreement”). 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. The CONSULTANTs are not employed by CONSULTPORT but carry out projects as subcontractors. The CONSULTANT provides his consulting services on his own responsibility and independently.
When registering on the Platform, the CONSULTANT must accurately enter all data, in particular the following: First name and second name, address, contact details, professional experience, education, and qualifications (“personal data”).
The Consulting Framework Agreement is concluded by user profile activation notice. It does not result in a right to perform consulting services on behalf of CONSULTPORT.
The CONSULTANT is assigned to provide consulting services to the CLIENT only upon conclusion of an individual agreement negotiated specifically for each project (the “Project Agreement”).
§ 3 Project Agreement
CONSULTPORT will notify the CONSULTANTs of projects suitable for them based on their background by phone, by email, or via the Platform. The CONSULTANT then informs CONSULTPORT by phone, by email, or via the Platform whether he is interested in providing the consulting services and may “apply” for the introduced project, i.e. submit an offer for the provision of consulting services for the introduced project.
The offer specifies in particular the daily rate or a fixed fee. At the same time, the CONSULTANT also consents to the disclosure of his personal data to the respective CLIENT of CONSULTPORT.
If necessary, a personal conversation or phone conversation coordinated by CONSULTPORT takes place between the CONSULTANT and the CLIENT.
CONSULTPORT may accept the CONSULTANT’s offer within 14 days of its receipt at CONSULTPORT or make a counteroffer to the CONSULTANT.
§ 4 Independent professional activity
The CONSULTANT provides his services on his own responsibility and independently. The services are provided upon agreement between the CLIENT and the CONSULTANT at the CLIENT’s premises or at another place agreed between the CLIENT and the CONSULTANT. Otherwise, the CONSULTANT determines the place of his activity by himself. The CONSULTANT assures that he has properly registered his business, obtains any approvals by himself, and where applicable, properly pays necessary charges to tax and social security bodies.
§ 5 Provision of services
Throughout the project duration, the CONSULTANT will:
- provide the consulting services with due care and skill and using his competencies;
- in providing project-related consultation services, ensure that the possible defined milestones are achieved on time and satisfactorily for the CLIENT; and
- in providing time-based consulting services, regard the agreed hours per day as a benchmark and contribute the necessary time to successfully achieve the project goal.
In the event that the CONSULTANT is unable to perform the services due to illness, injury, or other essential reasons, he will promptly inform CONSULTPORT and the CLIENT accordingly. If no services are performed with respect to a consulting project and project goals, no fee is payable.
§ 6 Fee and billing
CONSULTPORT pays the CONSULTANT a fee for his consulting services (the “Consulting Fee”). The Consulting Fee results from consulting days actually worked and the daily rates agreed for a particular project under the respective Project Agreement.
The Consulting Fee is billed monthly. To this end, the CONSULTANT records the consulting days worked, including a brief description, at the end of each month and communicates them to CONSULTPORT using an “activity recording form”. CONSULTPORT then issues an invoice to the CLIENT, which the latter may review within seven days. If the CLIENT does not object to the invoice, it is deemed approved and becomes due in 30 days. CONSULTPORT pays the CONSULTANT the agreed fee within seven business days (Berlin) of payment by the CLIENT of the remuneration for the consulting services.
§ 7 Loyalty arrangement and prohibition of circumvention
The CONSULTANT is prohibited, whether directly or indirectly and whether personally or through third parties, from contacting, offering consulting services to, and accepting projects from, CONSULTPORT’s CLIENTs and CLIENTs’ customers in relation to whom the CONSULTANT has worked for the CLIENT, as well as from performing consulting services for CLIENTs and CLIENTs’ customers in relation to whom the CONSULTANT has worked for the CLIENT (the “Loyalty Arrangement”). This prohibition applies starting from the respective project proposal for the duration of the CONSULTANT’s services to the CLIENT and for 12 months after the termination of those services of the CONSULTANT to the CLIENT or the CLIENT’s customer.
Should the CLIENT and the CONSULTANT enter into an employment, consultancy, or other contract during or within twelve months of engaging the CONSULTANT, this justifies a refutable assumption that the CONSULTANT has directly contacted the CLIENT and made the CLIENT an offer for consulting services. The same applies where the CONSULTANT enters into an employment, consultancy, or other contract with a business related to the CLIENT or with the CLIENT’s customer in relation to whom the CONSULTANT has worked for the CLIENT.
If the CONSULTANT and the CLIENT enter into a contract during or within twelve months after the engagement, CONSULTPORT is entitled to a contractual penalty of double the total project fee plus value added tax. The same applies where the CONSULTANT enters into an employment, consultancy, or other contract with a business related to the CLIENT or with the CLIENT’s customer in relation to whom the CONSULTANT has worked for the CLIENT. The above penalty applies accordingly to any further breach of the Loyalty Arrangement.
§ 8 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)).
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.
§ 9 Rights of use
If and insofar as works specifically created for the CLIENT (the “Deliverables”) result from the provision of contractual services, the CONSULTANT hereby grants CONSULTPORT the exclusive right of use, unlimited in terms of space, time, and content, to the respective Deliverable applicable for all types of use. It includes also the right to transfer the right of use to a third party, notably the CLIENT.
§ 10 Confidentiality agreement
As part of his work for CONSULTPORT, the CONSULTANT will inevitably receive information about CONSULTPORT and the CLIENT that is not publicly known (the “Confidential Information”). The CONSULTANT will treat this information as confidential at all times. The confidentiality obligation survives the termination of this Agreement.
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 CONSULTANT but specifying the project subject, industry, and project duration.
“Confidential Information” means, in this context, all information made available to the CONSULTANT by CONSULTPORT or to the CLIENT in connection with this Agreement and the relevant project (whether verbally, electronically, in writing, or in any other form), including, but not limited to, any information on project content, Agreement content, tasks of the CONSULTANT, and identity of the CLIENT and its customers, suppliers, and partners. The fact that the CLIENT is looking for consultants and that CONSULTPORT supports it in this regard is also confidential.
At any time during the project, upon request of the CLIENT or CONSULTPORT, the CONSULTANT will return to the CLIENT or CONSULTPORT all materials with the Confidential Information in his possession. Upon completion of the project work, all Confidential Information will be returned or destroyed.
In the event that the CONSULTANT becomes aware that the Confidential Information has been disclosed by employees or consultants in violation of this Agreement, the CONSULTANT must inform CONSULTPORT and the relevant CLIENT thereof without delay.
§ 11 Data privacy protection
The parties undertake to comply with the applicable data privacy protection regulations and 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.
§ 12 Term
This Agreement commences upon the CONSULTANT’s registration on the CONSULTPORT Platform.
This Agreement remains in effect indefinitely and 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 conviction for a crime is 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. Further, Sections 7 (“Loyalty arrangement and prohibition of circumvention”) and 10 (“Confidentiality agreement”) survive the termination of this Agreement.
§ 13 Governing law and venue
The contractual relationship 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
These Terms and Conditions, including Annexes, constitute the entire agreement between the parties and supersede all previous written and oral drafts, contracts, agreements, and understandings. 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.