Terms & Conditions

General Terms and Conditions (Basis of Services) of CIM Aachen GmbH
As of: September 2016

§ 1 Scope of application

1. The following General Terms and Conditions apply between CIM Aachen GmbH (hereinafter referred to as CIM) and CIM’s clients (hereinafter referred to as contractual partners) for the consulting services offered by CIM. The General Terms and Conditions only apply if the contractual partner is an entrepreneur (§ 14 BGB), a legal entity under public law, or a special fund under public law. The General Terms and Conditions in their respective version shall also apply as a framework agreement for future contracts for the provision of services to the same contracting party, without CIM having to refer to them again in each individual case. The General Terms and Conditions for an offer shall apply in the version current on the date of the offer.
2. Services and offers provided by CIM are based exclusively on these General Terms and Conditions in connection with the respective offers/contracts. By accepting an offer/concluding a contract, the contractual partner acknowledges these General Terms and Conditions as binding. The General Terms and Conditions apply exclusively. Deviating, conflicting, and/or supplementary general terms and conditions of the contractual partner are not recognized and do not become part of the contract even without express written objection by CIM; they are hereby rejected as a precautionary measure.
3. Changes to these General Terms and Conditions will be communicated to the contractual partner in writing or by email. If the contractual partner does not object to a communicated change within 4 weeks of receipt of the notification, the changes shall be deemed accepted. In the event of a change to the General Terms and Conditions, the contractual partner will be informed separately in writing of their right to object and the legal consequences of remaining silent.

§ 2 Subject matter of the service

1. CIM provides project-related consulting and services (e.g., organization of business processes) for contractual partners, the nature and scope of which are specified in the offer/contract. The offer/contract also specifies the expected project duration and the amount and type of remuneration and all ancillary services.
2. CIM shall perform the assigned tasks independently and freely and shall not be subject to any instructions from the contractual partners in the performance of the assigned tasks. CIM shall have no authority to issue instructions to employees of contractual partners
3. CIM is entitled to use vicarious agents (e.g., subcontractors) to fulfill contractual obligations. The persons employed by CIM do not enter into an employment relationship with the contractual partner and are not subject to the latter’s authority. This applies in particular if persons employed by CIM perform services on the premises of the contractual partner.

§ 3 Conclusion of contract

1. Offers made by CIM are subject to change.
2. A contract shall only come into effect upon written confirmation of the order by CIM or upon commencement of work by CIM.

§ 4 Time and place of work

The time and place of CIM’s deployment are specified in the offer/contract.

§ 5 Type and scope of services

1. The type and scope of the services to be provided in each case are governed by contractual agreements. The following are decisive in this regard:
   • Contract (including offer, service description, other attachments)
   • Terms and Conditions CIM Aachen
   • German law
2. In case of discrepancies, the provisions in the above order shall apply.

§ 6 Obligations of cooperation on the part of contractual partners

1. The contracting parties shall designate contact persons responsible for the execution of the contract, who shall either be specified in the offer/contract or notified in a binding manner after the conclusion of the contract. Any changes must be notified to the other party without delay.
2. The contractual partner shall promote the services and/or consulting services provided by CIM by taking the necessary cooperative actions. In particular, it shall provide CIM with the necessary information and data and shall allow CIM employees access to its business premises during the contractual partner’s business hours to the extent necessary. In addition, the contractual partner shall provide the necessary work materials, in particular workstations and computers, at its business premises to the extent necessary for CIM to provide its services.
3. The contractual partner’s obligations to cooperate constitute genuine obligations and not merely duties. If the contractual partner fails to fulfill its contractual obligations to cooperate by the agreed dates, the dates specified for CIM in the respective offer/contract shall be postponed by the number of calendar days by which the cooperation is delayed. If the cooperation is delayed by more than 7 calendar days, the deadlines agreed by CIM shall be postponed by an additional 10 working days, which shall be granted by the contractual partner for the resumption of the interrupted work. In the event of a delay of more than 10 days, CIM shall also be entitled to claim all standby costs (personnel, etc.) incurred as a result of the delay.

§ 7 Remuneration and incidental costs

1. Unless otherwise agreed, CIM shall be remunerated on a time basis in accordance with the current fee schedule. Travel time shall be remunerated in the same way as working time.
2. The amount of remuneration (hourly or daily rates) is based on CIM’s current fee schedule (valid on the date of order confirmation), unless otherwise agreed in the offer/contract between the parties.
3. CIM shall be entitled to increase the standard or list prices for the contractual services appropriately in order to offset increases in personnel and other costs. CIM shall announce these price increases in writing or by email with three months’ advance notice; the price increases shall not apply to periods for which the contractual partner has already made payments. If the price increase exceeds 5% of the previous rates, the contractual partner is entitled to terminate the contract in its entirety with six weeks’ notice to the end of a calendar month; if it exercises this right of termination, the prices that have not been increased will be charged until the termination takes effect. A price increase within twelve months of the conclusion of the contract is excluded.
4. The remuneration agreed between CIM and the contractual partner is exclusive of statutory sales tax.
5. The contractual partner shall bear all expenses, such as travel and accommodation costs, expenses, and third-party remuneration claims incurred in the course of contract execution, upon presentation of receipts. CIM may charge a handling fee of 15% for the processing of orders with third parties whose costs are charged directly to the contractual partner.
6. If the parties have not expressly agreed on remuneration for a service provided by CIM which the contractual partner could only expect to be provided in return for remuneration, the contractual partner shall pay the usual remuneration for this service. In case of doubt, the remuneration rates charged by CIM for its services shall be deemed to be customary.
7. Waiting times for CIM that are attributable to the contracting party shall be remunerated as working hours.

§ 8 Invoicing; Due date; Payment terms

1. CIM issues invoices retrospectively on a monthly basis and, at the request of the contractual partner, provides evidence of the time spent in accordance with industry standards. In addition to remuneration, ancillary costs, and expenses, the invoices issued by CIM also show the statutory value-added tax.
2. Unless otherwise specified, remuneration for services provided by CIM is due immediately upon provision of the service by CIM and payable immediately and without deduction upon invoicing by CIM.
3. In the event of late payment, CIM shall charge interest at the rate specified in the German Civil Code (BGB) for late payment. We reserve the right to claim further damages for late payment and the statutory flat-rate late payment fee.
4. The contracting party may only offset or assert a right of retention against claims that are undisputed or have been legally established. Furthermore, the assertion of a right of retention is only permissible with regard to claims arising from this contract.
5. If, after conclusion of the contract, a significant deterioration in the financial circumstances of the contractual partner becomes known, CIM shall be entitled to make outstanding deliveries and provide outstanding services only against advance payment. In this case, this obligation to make advance payment shall also apply to agreed performance bonuses and remuneration components that have been agreed as deferred. If, at the time of a request for advance payment, the amount of a performance bonus has not yet been determined or the conditions for the bonus have not yet been met, CIM shall determine the advance payment amount to be made and notify the contractual partner of the payment. Until the conditions for the success fee have been met/the exact amount has been determined, CIM shall hold the amount in a separate account. At the request of the contractual partner and at their expense, the advance payment of a success fee may be made to a trust account held by a notary or lawyer, and a corresponding agreement may be made for irrevocable transfer to CIM once the conditions have been met.
6. If requested advance payments are not made even after a reasonable grace period has been set, CIM may withdraw from this contract or terminate the contractual relationship with immediate effect for good cause within two weeks of the grace period expiring without result.
7. A claim for repayment of amounts paid in advance in accordance with Section 8.5 shall only exist if CIM has failed to achieve the contractually agreed result for reasons for which CIM is responsible.

§ 9 Amendment procedure

1. The contracting party may request changes to the services to be provided by CIM in accordance with the respective offer/individual contract. The request for change shall be submitted by the contractual partner in writing. CIM is obliged to submit an offer for the contract amendment upon request by the contractual partner. CIM will examine a request for change by the contractual partner to determine whether and under what conditions it is feasible and will notify the contractual partner of its approval or rejection as soon as possible.
2. The dates affected by the amendment procedure shall be postponed, taking into account the duration of the review, the duration of the vote on the proposed amendment and, if applicable, the duration of the amendment requests to be carried out, plus a reasonable start-up period. This shall be recorded in a supplementary agreement.
3. The contracting party shall bear all expenses incurred by CIM as a result of the contracting party’s request for changes. These include, in particular, reviewing the change request, preparing a change proposal, and any downtime. Unless otherwise agreed, all activities performed by CIM in connection with the contracting party’s change request shall be remunerated at the rate agreed in the offer/individual contract.

§ 10 Data protection

1. CIM and its vicarious agents are bound to data secrecy in accordance with § 5 of the Federal Data Protection Act. The obligation to maintain data secrecy applies to all individual details relating to a person’s personal and factual circumstances, as well as to all protective measures relating to this information. In particular, CIM is obliged not to process or use any personal data without authorization.
2. The applicable regulations on the handling of personal data must be observed.
3. These obligations shall continue to apply beyond the end of the contract.

§ 11 Duty of confidentiality, storage, and return of documents

1. The contracting parties undertake to maintain confidentiality regarding all technical and operational matters and/or processes of the contracting parties that come to their knowledge in connection with the performance of the contract, in particular trade and/or business secrets, and not to disclose them to third parties. This does not apply to information that is intended for publication or whose disclosure or publication has been approved in writing by the contracting party, as well as information that the contracting party has obtained from third parties without breaching a confidentiality obligation or that was already known to it beforehand. This also does not apply to the disclosure of data to public authorities within the framework of, for example, official proceedings, as required by law.
2. CIM undertakes to store all business and operating documents made available to CIM and created by CIM itself within the scope of the cooperation in a proper manner and, in particular, to ensure that third parties cannot gain access to them. This applies in particular to all records, sketches, samples, models, concepts, and documents, as well as all programs, files, etc., which are in the possession of CIM and which relate to the affairs of the contractual partner. Upon termination of the contract, CIM shall return all documents provided to CIM by the contractual partner to the contractual partner at the latter’s request and expense. If the contractual partner does not request CIM to return the documents within 3 years, CIM shall be entitled to destroy the documents. CIM shall be entitled to archive copies if and to the extent that these are required for the purposes of proper accounting and/or documentation.
3. These obligations shall continue to apply after termination of the contract (after-effect).
4. The contracting parties shall impose corresponding obligations on their vicarious agents.

§ 12 Warranty for qualitative performance defects

1. If the consulting and/or service agreed in the individual contract is not provided in accordance with the contract or is provided incorrectly and CIM is responsible for this, CIM shall provide the service in accordance with the contract and without errors at no additional cost to the contractual partner within a reasonable grace period. This is subject to the contractual partner lodging a complaint without delay, at the latest within two weeks of becoming aware of the non-contractual, faulty service. If, for reasons for which CIM is responsible, the service cannot be provided in accordance with the contract, even within a reasonable grace period to be set expressly by the contractual partner, the contractual partner shall be entitled to terminate the contract without notice.
2. In the event of termination within the meaning of Section 12.1, CIM shall be entitled to remuneration for the services rendered under the contract until the termination takes effect. Remuneration shall only be waived for those services for which the contractual partner can prove within 4 weeks of the declaration of termination that they are of no use to it and of no interest to it. For usability within the meaning of the preceding sentence, the purely theoretical possibility of use by the contractual partner shall suffice.
3. The right to extraordinary termination remains unaffected by this. In this case, too, CIM is entitled to remuneration for the services rendered under the contract until the termination takes effect. Remuneration shall only be waived for those services for which the contractual partner can prove within 4 weeks of the declaration of termination that they are of no use to him and of no interest to him.
4. Further warranty claims by the contractual partner for qualitative defects are excluded. This exclusion does not apply in cases of intent or gross negligence, or in the case of claims by the contractual partner arising from product liability. Furthermore, the limitations of liability do not apply to physical injury or damage to health attributable to CIM.

§ 13 General liability provisions, liability for representatives

1. Liability for quality defects is governed by the provisions of Section 12 above. These provisions are final; in the event of fraudulent intent or the assumption of a guarantee by CIM, the statutory warranty provisions shall remain unaffected.
2. Otherwise, CIM shall be liable without limitation for intent and gross negligence. In the event of breaches of material contractual obligations caused by slight negligence on the part of CIM or its legal representatives or vicarious agents within the scope of this contract, CIM’s liability to the contractual partner shall be limited to the foreseeable, contract-typical, direct average damage. Any further liability is excluded.
3. The above limitations and exclusions of liability do not apply to claims by the contractual partner arising from product liability. Furthermore, the limitations of liability do not apply to damage to life, limb, and health attributable to CIM.
4. The contracting parties shall specify a limitation of liability in the individual contract for each liability case.
5. If a limitation of liability in terms of the total amount per liability case has not been effectively agreed in an individual contract, Section 13.4, a limitation of liability per liability case in the amount of the total remuneration payable to CIM in accordance with the respective individual contract shall apply to each individual contract.
6. The contractual partner is responsible for checking the legal admissibility of implementing the consulting results developed by CIM. This applies, for example, in the event that measures violate provisions of data protection law, competition law, copyright law, and/or specific provisions on product advertising, as well as any specific provisions relating to the contractual partner’s field of activity. CIM will inform the contractual partner of any legal risks that become apparent during preparation/implementation.
7. CIM shall in no event be liable for any factual statements made following the consultation regarding the contractual partner’s products and/or services or for any other statements. CIM shall also not be liable for the patentability, copyrightability, or registrability of ideas, suggestions, proposals, concepts, drafts, etc. communicated within the framework of a contract. The examination of legal issues is expressly not the responsibility of CIM and is the sole responsibility of the contractual partner.
8. In the event of loss of data or programs for which CIM is responsible, CIM shall only be liable for the restoration costs incurred if the contractual partner performs regular data backups and has thereby ensured that lost data can be restored with reasonable effort or that the extent of possible losses is kept to a minimum. In this context, data must be backed up daily by the contractual partner. In addition to the contractual partner’s own data, the data to be backed up by the contractual partner includes, in particular, all data recorded from communication in information and communication media (Internet, etc.) (customer data, user data, order data, etc.), regardless of where the storage medium is located.
9. CIM shall not be responsible for delays in performance due to force majeure and events that make performance significantly more difficult or impossible for CIM on a more than temporary basis—this includes, in particular, strikes, lockouts, official orders, etc., even if they occur at suppliers or third-party service providers of CIM—even in the case of bindingly agreed deadlines and dates.

§ 14 Statute of limitations

Claims for qualitative performance disruptions (Section 12) and contractual liability claims (Section 14) shall become time-barred one year after the start of the statutory limitation period. This does not apply in cases of intent or gross negligence on the part of CIM, its legal representatives or vicarious agents, as well as in cases of injury to life, limb or health or liability under the Product Liability Act. In these cases, the statutory limitation period applies.

§ 15 Transfer of rights of use

1. Insofar as CIM creates/recreates a work product specifically for the contractual partner within the scope of the services provided by CIM that is protected by copyright or other ancillary copyrights, CIM grants the contractual partner a simple right of use to the work, unlimited in time and space, and permits the contractual partner to use the work in accordance with the contract.
2. The Contractual Partner shall in particular ensure that the reports, organizational plans, drafts, drawings, lists, and calculations produced by CIM within the scope of the order are used exclusively for the Contractual Partner’s own purposes.
3. The contracting party shall be granted a non-exclusive right of use to any legally protected services, whether proprietary or third-party, that may be used and incorporated by CIM for the provision of services and that were developed independently of the contractual cooperation between the contracting parties, to the extent necessary for contractual use. CIM undertakes not to use any materials (components, graphics, elements, templates, concepts, ideas, and the like) whose use would result in the infringement of third-party property rights.
4. The remuneration for granting rights of use in connection with the provision of services for copyright-protected works is covered by the remuneration for the provision of services. The transfer of rights takes place upon full payment of the remuneration agreed for a service by the contractual partner.

§ 16 Contract term and termination; reduction in order volume

1. The contract ends upon expiry of the agreed term.
2. However, it may be terminated in writing at an earlier date with eight weeks’ notice if special operational reasons on the part of the contractual partner so require. In this case, CIM’s remuneration shall be regulated as follows: Full remuneration shall be paid for the services provided by CIM up to the end of the contract due to termination. No remuneration shall be payable for services no longer to be performed as a result of the premature termination, insofar as CIM has saved expenses and/or generated income by using the resources thus freed up for other purposes, or has maliciously failed to do so.
3. The only special operational reasons that justify early termination within the meaning of this provision are those that clearly indicate that the contractual partner will no longer be able to use/utilize CIM’s contractual services in any form whatsoever due to circumstances arising in its company as a result of external influences after CIM was commissioned. The provision of § 627 BGB (German Civil Code) is expressly waived.

§ 17 Fiduciary duties

The contracting parties and CIM undertake to maintain mutual loyalty. The contracting party undertakes not to poach, hire, or otherwise employ any CIM employees working on projects for the contracting party during the execution of the contract or after the end of the cooperation. This provision applies to the contracting party and companies affiliated with the contracting party. Any breach of the aforementioned contractual obligations shall result in a contractual penalty of EUR 30,000.00 being payable by the contractual partner.

§ 18 Miscellaneous

1. The law of the Federal Republic of Germany applies, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
2. The exclusive place of jurisdiction is Aachen.
3. Amendments and additions to these General Terms and Conditions, the offer/contract, and any amendment or cancellation of this written form clause shall only be effective if agreed in writing, unless they are based on an express or individual contractual agreement.
4. The invalidity of one or more provisions of these General Terms and Conditions and/or additional provisions shall not affect the validity of the remainder of this contract. An invalid provision shall be replaced by a valid provision that comes as close as possible to the economic purpose of the invalid clause.