Terms of service
General contract terms of Westfälische Corporate Finance GmbH
1. The services described in the mandate agreement - hereinafter referred to as "the services" - are provided by us exclusively for you as our client, with reasonable care to the best of our knowledge and belief.
We provide the services for you as an independent contract partner and not as an employee, representative, partner or co-entrepreneur. Neither you nor we are entitled, authorized or authorized to oblige the other contracting party.
We are entitled to subcontract parts of the services to service providers who can contact you directly. We are solely responsible for the work results (see definition in Section 10), the provision of the services and for our other obligations resulting from the mandate agreement.
4.We are not responsible for the management decisions that are made in connection with our services. We are not responsible for the use or implementation of the results of our services.
5. You name a qualified contact person to accompany our services. You are responsible for all management decisions in connection with our services, the use or implementation of the results of our services and for deciding to what extent our services are suitable for your purposes.
6.You will (or cause others) to provide us immediately with all the information, resources and support required for the provision of the services (including access to documents, systems, premises and people).
7. All information provided to us by you or on your behalf ("client information") must be correct and complete. They ensure that client information provided to us does not infringe copyrights or other third party rights.
We are entitled to rely on the client information provided to us and, unless expressly agreed otherwise, are not responsible for evaluating it or checking its accuracy.
9.You are responsible for ensuring that your employees comply with the obligations stipulated in the mandate agreement.
Our work results
10. With the exception of the client information, all information, advisory services, recommendations or other content of reports, presentations or other communications that we provide to you in fulfillment of the mandate agreement (the “work results”) are exclusive (in accordance with the purpose of the services ) intended for their internal use.
11.You are not entitled to disclose work results (as well as a part or a summary of such) to third parties (including your affiliates) or to refer to us in connection with the services; this does not apply
(a) towards their lawyers if, subject to this disclosure ban, they only examine the work results to advise you in connection with the services,
(b) insofar as you are obliged to disclose a law (about which you immediately inform us as far as permissible), or
(c) to other persons or companies (including your affiliates) if we have given our prior written consent, they have signed our information agreement and they only use the work results within the scope of the consent given.
Insofar as you are entitled to disclose work results (or parts thereof), you are nevertheless not permitted to make changes, modifications or modifications to the work results.
12.You are entitled to include summaries, calculations or tables contained in a work result and based on client information in documents that you intend to use, but not our recommendations, conclusions or findings. You assume sole responsibility for the content of such documents, and you are not authorized to refer us directly or indirectly to third parties in connection with them.
13.You are not entitled to rely on the draft version of a work result (which is non-binding), but only on the final written version. Draft versions of a work result only serve our internal purposes and / or the coordination with you and are therefore only a preliminary stage of the work result and are neither final nor binding and require a further review. We are not obliged to update a final work result with regard to circumstances that have come to our attention since the time of completion of our work or - in the absence of such a time - the delivery of the work result. This does not apply if something else has been agreed.
Limitation of liability
14. We are liable for damages or reimbursement of expenses within the framework of the statutory provisions for injury to life, limb or health.
We are only liable for other damages in accordance with the following provisions for damage caused by malicious behavior, intent or gross negligence. In the case of simple negligence, we are liable to the amount of the foreseeable damage typical for the contract. The contracting parties will agree the amount of the foreseeable damage typical for the contract resulting from the respective mandate agreement in each case separately for the respective mandate agreement. This also applies if liability towards someone other than you is justified; in this case § 334 BGB applies. If no upper limit of liability has been agreed in the respective mandate agreement, we are liable up to the amount of the agreed remuneration.
16. A claim for damages can only be asserted within an exclusion period of one year, after which the beneficiary has become aware of the damage and the event that created the claim, but at the latest within five years after the event giving rise to the claim. The claim expires if no action is brought within a period of six months after the written refusal of the replacement service, provided that you have been advised of this consequence. The right to raise an objection of limitation remains unaffected.
17.You are not entitled to assert contractual claims or procedures in connection with the services or generally on the basis of the mandate agreement against and our subcontractors, shareholders, management members, partners or employees. You undertake to only assert contractual claims against us or to institute proceedings only against us.
18. You are obliged to exempt our subcontractors, shareholders, management members, partners or employees from all claims by third parties (including your affiliates and lawyers) and the resulting obligations, damages, costs and expenses (in particular reasonable external attorney fees) that result from the use of the work result by third parties or because a third party trusts the work result and the transfer was made directly or indirectly by you or at your instigation. This obligation does not exist if we have expressly agreed in writing that the third party can trust the work result.
Rights of use
19. As part of the provision of our services, we are entitled to use data, software, samples, aids, tools, models, systems as well as other methods and specialist knowledge ("know-how") that are our property. Irrespective of the delivery of the work result, the intellectual property of the know-how (including the improvements developed in the course of the provision of the services or the acquired knowledge) and of all working papers compiled within the scope of the services (with the exception of the client information reproduced therein) remain with us .
Unless otherwise stipulated in the mandate agreement, neither of the contracting parties is entitled to view the content of the mandate agreement or other information provided by or in the name of the other contracting party and which is reasonably confidential and / or as must be treated in a manner worthy of protection and must be disclosed to third parties.
However, the contracting parties are permitted to disclose such information insofar as it
(a) have become publicly known or become publicly known without violating the mandate agreement,
(b) was subsequently made available to the recipient by a third party who, to the recipient's knowledge, is not obliged to disclose the information to the disclosing party with regard to the information,
(c) was already known to the recipient at the time of disclosure or was subsequently developed independently,
(d) disclosed to the extent necessary to enforce the rights of the recipient under the mandate agreement,
(e) must be disclosed due to legal or regulatory requirements.
21. The contracting parties are permitted to use electronic media to exchange and transmit information. Such use does not per se violate the confidentiality obligations in accordance with the mandate agreement. The contracting parties are aware that the electronic transmission of information (in particular by email) carries risks.
22.We are entitled for purposes in connection with the provision of our services, for compliance with professional regulations, for avoiding conflicts of interest, for the purpose of quality and risk management, accounting and / or in connection with the provision of other administrative and IT support services (together "processing purposes") pass on client information to third parties who act on our behalf, who can collect, use, transfer, store or otherwise process such data in the various jurisdictions in which they operate (together "process"). We are responsible to you to ensure the confidentiality of your client information.
23.For those under no. 22 processing purposes, we, our subcontractors, shareholders, management members, partners or employees and third parties who act on our behalf, are authorized to provide client information that can be assigned to specific persons ("personal data") in the various jurisdictions in which we and they are working to process. We process personal data only in accordance with professional regulations and applicable law in compliance with the BDSG (new) 2017 and the GDPR. We oblige all contractors who process personal data on our behalf to adhere to these provisions.
24. You guarantee that you are authorized to provide us with personal data in connection with the provision of our services and that the personal data provided to us has been processed in accordance with applicable law.
25.Your remuneration obligation includes the payment of our remuneration and certain expenses for our services in accordance with the corresponding service description or its attachments. You are also obliged to reimburse us for any other reasonable out-of-pocket expenses that we incurred in the course of rendering our services, unless otherwise agreed in individual cases. Our remuneration is exclusive of taxes or similar expenses or customs duties, fees or charges that arise in connection with the services; these are your responsibility (with the exception of general taxation on income). We can request reasonable advances on our remuneration and reimbursement of expenses and make the delivery of our work results dependent on the full satisfaction of our claims. Unless otherwise stipulated in the service description, the remuneration is due immediately after receipt of our invoice.
26.We are entitled to additional remuneration if events outside our sphere of influence (including your actions or omissions) prevent us from performing the services as originally planned or if you entrust us with the performance of additional tasks.
27. Insofar as we are obliged by law or on the basis of a judicial or other sovereign order to provide information as evidence or personnel as witnesses in connection with our services or the mandate agreement, you are obliged to us the time and cost involved (including external legal advice costs), unless we are a party to the proceedings or subject of the investigation or unless we are compensated by government agencies.
28.None of the contracting parties is responsible for a breach of the mandate agreement (with the exception of payment obligations) if this was caused by circumstances beyond the control of the contracting parties ("force majeure").
Term and termination
29. The terms of the mandate agreement apply to the performance of this mandate agreement (including those that were provided prior to the signing of the mandate agreement) regardless of the date of execution.
30. The mandate agreement ends when the benefits are concluded. Each contracting party is entitled to terminate the mandate agreement or a specific service in writing with 14 days' notice. In addition, we are entitled to terminate the mandate agreement or a specific service without notice if, based on reasonable considerations, we can no longer provide the services in accordance with applicable law or our professional obligations. Sections 626 and 627 BGB remain unaffected.
31. You are obliged to compensate us for services that have already begun or have been completed, as well as to compensate for expenses and expenses incurred by us up to the date of termination of the mandate agreement.
Our respective confidentiality obligations in accordance with the mandate agreement continue to apply for a period of 10 years after the termination of the mandate agreement. All other provisions of the mandate agreement, which establish rights and obligations of the contracting parties beyond the termination of the mandate agreement, continue to apply indefinitely even after the termination of the mandate agreement.
Applicable Law and Jurisdiction
33.German law applies to the mandate agreement and all non-contractual matters or obligations arising from the mandate agreement or the services.
34. The exclusive place of jurisdiction for all legal disputes arising in connection with the mandate agreement or the services is Gütersloh, Germany, or at our discretion, (i) the court at which our branch that focuses on the provision of the services has its registered office or (ii) the dishes in the place where you are based.
35.The mandate agreement represents the entire agreement with regard to the services and other matters regulated in the mandate agreement between the contracting parties and replaces all previous agreements, agreements and declarations in this regard, including previously concluded confidentiality agreements.
36.The mandate agreement and / or the service description (as well as changes thereof) must be made in writing in accordance with Section 126 (1) BGB. For the mandate agreement to be effective, it is sufficient if each of the contracting parties signs a separate copy of the same document.
37.Each party assures the other that the person who signs the mandate agreement and / or the service description on their behalf is authorized to contractually bind the respective party.
38.You warrant that your affiliates or other parties for whom the services are provided are bound by the terms of the mandate agreement and the service description.
39. You hereby agree that we may act for other clients - including your competitors.
40. An assignment of the rights, obligations or claims from the mandate agreement is not permitted.
41.If one or more provisions of the mandate agreement should be partially or completely ineffective, void or otherwise impracticable, this does not affect the effectiveness of the remaining provisions.
42. In the event of contradictions or ambiguities between the provisions of the mandate agreement, the following order of priority applies (unless expressly agreed otherwise): (a) the cover letter, (b) the corresponding service description of the mandate agreement, (c) declaration of consent, (d) these general terms and conditions and (e) the other annexes to the mandate agreement.
43. Neither party is entitled to use or refer to the other party's name, logo or brand without their prior consent.
44.If we receive your prior consent through the attached declaration of consent, we may publicly name your company name in connection with the services provided or in another way as our client.
45.Our subcontractors, shareholders, management members, partners or employees are entitled to comply with the restrictions set out in no. 14 to 17 and the provisions of para. 18, 22, 23 and 38.