§ 1 Area of applicability
1. 1. These General Terms and Conditions for consultancy services apply to contracts, the object of which is that the contractor provides advice and information to the principal, regarding the planning, preparation and implementation of entrepreneurial or professional decisions and projects, especially in the following areas:
- legal advice
- auditing, tax advice and accounting
- company management/management consulting
- administration and organisation
1.2. The general terms and conditions of the principal will only be applicable, when this has been expressly agreed in writing.
1.3. In a collaboration or co-operation with other professional organisations, such as auditors, communication consultants, tax consultants and solicitors, the task assignments must be clearly delimited. The GTC of De Micco & Friends is applicable internally, while the GTC of the corresponding professional organisation, which has received a mandate from the principal, is applicable externally. In individual cases of co-operation with another professional organisation, De Micco & Friends will commit itself to observing the professional principles of the other profession, besides its own professional principles.
§ 2 Object of the contract/scope of services
2.1. The object of the contract is the agreed activity, which is described in the contract, not the achievement of a specified commercial success. The performance requirements on the contractor are fulfilled, when the required analyses and works, including the resulting conclusions and recommendations, have been developed and explained to the contracting party. It is unimportant, whether or when the conclusions or recommendations are implemented.
2.2. On request by the contracting party, the contractor must provide information about the status and progress in carrying out the assignment. After the assignment has been completed, the contractor must account for the results by means of an oral or written report, which includes a description of the assignment, the procedure and steps used for completing the assignment and all important results thereof. The provision of a comprehensive and written report by a contractor must be separately agreed to in advance, especially if such a report is to be presented to third parties.
2.3. The contractor will carry out all works with the greatest care, and under observation the individual situation and requirements of the principal.
2.4. That contractor is obliged to provide correct and complete information in the surveys and analyses of the situation of the company, and with regard to the formulation of the questions asked of contractor. Data delivered by third parties or by the principal will only be checked for plausibility. Conclusions and recommendations, which are derived from the investigations, are provided on the basis of best know-how, and under observation of recognized rules of the profession and practice.
2.5. Unless agreed to the contrary, the contractor has the right to use expert subcontractors for the fulfillment of the assignment. The contractor must use properly educated employees that dispose over the necessary professional know-how, for continuously supporting and monitoring the execution of the assignment. Incidentally, the contractor has the right to deploy or replace employees at his own discretion.
§ 3 Performance modifications
3.1. The contractor is obliged to take requests for modifications by the principal into account, insofar as this can be expected within the framework of his operational capacities, and especially with regard to the expense and time planning.
3.2. Insofar as an examination of the modification possibilities, or the implementation of requested changes, has an effect on the contract conditions, and especially on the expenses or the time schedule of the contractor, then the parties will agree to an appropriate modification of the contract conditions, and especially to an increase of the compensation and a rescheduling of deadlines. Insofar as no contrary agreements have been made, the contractor will continue to carry out his works in such a case, without taking the requested modifications into account until such time as the contract is modified.
3.3. If an extended examination of additional costs is required, then the contractor can request a separate order in this regard.
3.4. To be effective, modifications and supplements to the contract must be made in a written form. Protocols about such discussions will be sufficient, insofar as these have been signed by the empowered representatives of both sides.
§ 4 Obligation to confidentiality/Privacy protection
4.1. The contractor must maintain full confidentiality at all times about all information, business or operational secrets of the principal that have been described as confidential, and which come to his attention in connection with the assignment. The transfer of all information to third parties that are concerned with the implementation of the order, is permitted without the express approval of the principal.
4.2. The contractor will see to it that all persons, deployed by him for the implementation of the order, will be committed to the observation of this confidentiality obligation.
4.3. Within the objectives of the order, the contractor has the right to process personal data that has been entrusted to him, under observation of the applicable privacy provisions, or to let such data be processed by third parties.
§ 5 Obligation of the principal to co-operate
5.1. The principal has the obligation to support the contractor to the best of his ability, and to create those preconditions within his operational surroundings that are necessary for a proper implementation of the assignment; this particularly concerns all important documents, which are necessary for carrying out the assignment, which must be made available in a timely manner.
5.2. On request by the contractor, the principal must confirm the correctness and completeness of the documents provided by him in writing, also including information and oral declarations.
§ 6 Compensation / terms of payment / payment offsets
6.1. The compensation for the services of the contractor is calculated as a matter of principle on the basis of the time required for the assignment (hourly/daily fee). A fee that is based on the degree of success, or that is only payable in case of success, is always excluded for pure consultancy assignments. Activities by the contractor in the area of mergers & acquisitions transactions are an exception (see item 6.6.). Besides his fees, the contractor has a right to the compensation of corresponding outlays, such as especially traveling costs and expenses that are due to the assignment.
6.2. If long-term contracts are settled on the basis of provided effort and services, then the most recent agreement applies. Supplements must be signed by both parties to the contract, whereby a copy is provided to each of the parties.
6.3. All invoices are due for payment at the latest when the invoice is presented, and such invoices are payable immediately and without deduction. Legally applicable value added tax must be added to all indicated prices and will be separately documented on invoices.
6.4. Multiple ordering parties (natural persons and/or legal entities) are jointly and severally liable.
6.5. An offset against claims of the contractor for payment and compensation of outlays is only permissible against undisputed and legally binding claims.
6.6. For successfully concluded mergers & acquisitions transactions, a success-related fee of of 5% is agreed. This success-related fee is immediately due for payment after closure of the transaction. The success-related fee for M&A transactions is understood as a selling commission. Previously paid consultancy fees on a transaction are not nettable.
§ 7 Remediation of deficiencies
7.1. Insofar as performances are open to improvement, the contractor will remediate those deficiencies that are his responsibility, if this is possible at a reasonable expense. The principal must provide immediate and written notification of eventual deficiencies, however at the latest one month after the provision of the corresponding service.
7.2. If a remediation is not successful, then the principal can demand a reduction of the compensation or a cancellation of the contract. If the assignment was made by an entrepreneur, a public sector legal entity or a public sector special fund, then the principal can only demand a cancellation of the contract if, due to a failure of remediation, the provided performance is of no interest. §8 applies for any claims for damages in excess of this.
8.1. Regardless of the applicable legal reasons, the contractor is liable to the principal for those premeditated or grossly negligent damages, which are caused by him, his organisation or he is leading employees. The present warranty excludes damages to life or health. Negligence and violation of obligations by the contractor are equivalent to those of legal representatives or agents of vicarious liability.
8.2. Liability for minor negligence is only applicable in cases of a violation of important contractual obligations. In this case, and in cases of premeditation and negligence by such agents of vicarious liability, whereby the latter are not employees, the contractor will only be liable for typical damages that are foreseeable, when taking into account all important and recognisable circumstances. Damages are in all instances limited to a maximum of US$ 50,000 for each individual case. An individual instance of damages is defined as the sum of the claims of all those entitled to a compensation, which are the result of a single and integrated performance provided during a sequential period of time. The contractor is not obliged to provide a higher liability warranty to the principal, if a substantially higher risk of damages is foreseeable. The contractor is not liable for an inappropriate use or implementation by the principal of those recommendations, which were provided within the framework of the services or in the work documentation by the contractor.
8.3. Claims for damages on the part of the principal against the contractor are statute-barred as of 1 year after an entitlement for compensation occurred, or after cognizance was taken of such a claim.
§ 9 Protection of intellectual property rights
9.1. The principal warrants that the reports, organisational plans, designs, drawings, lists or calculations that are produced by the contractor within the framework of the assignment, will only be used for the contractually agreed objectives, and that these will not be copied, processed, translated, reprinted, distributed or published without the express permission of the contractor, also in individual cases. A utilisation of the consultancy services provided by the contractor, by the companies affiliated with the principal, must be subject of an express and written agreement.
9.2. To the extent that working results may be protected by copyright, such a copyright is the property of the contractor. In such cases, the principal is granted the irrevocable, exclusive and non-transferable right of utilisation of the working result, as delimited in Paragraph 1, sentence 1, and without limitation as to time or place.
§ 10 Loyalty obligation
10.1. The parties are committed to mutual loyalty. They will immediately inform each other concerning all circumstances, which occur during the course of the project implementation and that can have an impact on the work.
10.2. In particular, and during a period of not less than 12 months after the termination of the co-operation, the principal must refrain from hiring or otherwise employing staff members or ex-employees of the contractor, who are or were engaged in the execution of the assignment.
10.3. The principal commits himself to informing the contractor immediately, of any intention to give notice or intention to change one's position, which is expressed by any of the staff utilised by the contractor.
§ 11 Force majeure
Events of force majeure, which make the provision of services substantially more difficult or even impossible at times, give the contractor the right to postpone the fulfillment of his obligations for the duration of the hindrance, plus a reasonable restart time. Force majeure includes such events as strikes, sickness and similar circumstances, insofar as they are not foreseeable by, severe for nor the responsibility of the contractor. The parties will immediately inform each other of the occurrence of such circumstances.
§ 12 Notification of termination
12.1. If no agreements have been made to the contrary, then a long-term assignment can be cancelled with a period of notification of 14 days to the end of the quarter. This does not prejudice the right to an extraordinary cancellation.
12.2. To be effective, a notification of cancellation must be provided in a written form.
§ 13 Right of retention/Archiving of documents
13.1. Until such times as his invoices have been completely settled, the contractor maintains the right of retention to all documents that have been provided to him. Such a retention is contrary to the loyalty obligation, if such a retention would cause disproportional high damages, which are not to be justified under consideration of the interests of both parties.
13.2. After settlement of his claims due to the contract, the contractor must return all documents that have been provided to him by the principal or third parties for the purpose of the execution of the assignment. This provision does not apply to the correspondence between the parties and to simple copies of reports, organisation plans, drawings, lists, calculations etc., insofar as the originals have been returned to the principal.
13.3. For documents that have been retained under the provisions of § 13.1, the obligation for storage of documents by the contractor lapses six months after a written notification for picking up these documents has been provided, or otherwise after three years, and five years after the termination of the contractual relationship.
§ 14 Seminars & Workshops
14.1. De Micco & Friends offers both open and closed seminars. Open seminars are conducted at various locations, and they can be booked by participants from different companies, including private persons. For closed seminars, only those participants of a company or an institution will be given access, who have been appointed by the principal.
14.2. The contractor reserves the right to modify the locations and dates of seminars, if this should prove necessary. In the event that the location and time of a seminar is changed, then the seminar fees paid by the principal will be repaid, if the seminar cannot be attended on the new dates. Other claims cannot be made by the principal, in the event of a change of a seminar date and location.
14.3. The seminar fees documented in the corresponding price list are payable when a seminar is booked. A fee of 25% of the seminar price will be charged, if a booking for a seminar is cancelled at least four weeks in advance of a seminar date. Seminar fees are not repayable after this deadline.
14.4. The names of lecturers documented in the corresponding seminar descriptions are not binding. The contractor reserves the right to change the lecturers at any time and at his own discretion.
§ 15 Miscellaneous
15.1. Rights that are a consequence of the contract with the contractor may only be transferred after advance and written agreement.
15.2. All claims and entitlements, which are a consequence of his contract, are exclusively subject to the laws of the Principality of Monaco.
15.3. Changes and supplements of these conditions, or of the contract, must be made in writing and, to be effective, must be expressly agreed to and signed by both parties.
15.4. For all disputes that are a consequence of this contract, the court of venue is agreed to be at the registered headquarters of the contractor, if the order was placed by an entrepreneur, a legal entity subject to public law or a public sector special fund.
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