Deutsch
Consultation

General Terms of Engagement

Westfälische Corporate Finance GmbH

This English version is provided for convenience. Only the German version is legally binding.

Our engagement

  1. The services described in the engagement agreement, hereinafter referred to as “the Services”, are provided by us exclusively for you as our client, with reasonable care and to the best of our knowledge and belief.
  2. We provide the Services to you as an independent contractor and not as an employee, agent, partner or co-entrepreneur. Neither you nor we are entitled, empowered or authorised to bind the other contracting party.
  3. We are entitled to subcontract parts of the Services to service providers, who may contact you directly. Responsibility for the Deliverables (see the definition in Clause 10), for the performance of the Services and for our other obligations arising from the engagement agreement lies exclusively with us.
  4. We accept no responsibility for the management decisions taken in connection with our Services. We are not responsible for the use or implementation of the results of our Services.

Your responsibilities

  1. You will designate a qualified contact person for us who will oversee our Services. You are responsible for all management decisions in connection with our Services, for the use or implementation of the results of our Services and for deciding to what extent our Services are suitable for your purposes.
  2. You will (or will cause others to) provide us without undue delay with all information, resources and assistance (including access to documents, systems, premises and people) required for the performance of the Services.
  3. All information provided to us by you or on your behalf (“Client Information”) must be accurate and complete. You shall ensure that Client Information provided to us does not infringe copyrights or any other rights of third parties.
  4. We are entitled to rely on Client Information provided to us and, unless expressly agreed otherwise, are not responsible for assessing it or verifying its accuracy.
  5. You are responsible for ensuring that your employees comply with the obligations incumbent upon them under the engagement agreement.

Our deliverables

  1. With the exception of Client Information, all information, advice, recommendations or other content of reports, presentations or other communications that we provide to you in performance of the engagement agreement (the “Deliverables”) are intended exclusively (in accordance with the purpose of the Services) for your internal use.
  2. You are not entitled to disclose Deliverables (or any part or summary of them) to third parties (including your affiliated companies) or to refer to us in connection with the Services; this does not apply
    1. to your lawyers, if they, subject to this prohibition of disclosure, review the Deliverables solely in order to advise you in connection with the Services,
    2. to the extent that you are obliged to disclose by law (of which you will inform us without undue delay, to the extent permitted), or
    3. to other persons or companies (including your affiliated companies) if we have given our prior written consent, they have signed our information agreement and they use the Deliverables only within the scope of the consent given.

    To the extent that you are entitled to disclose Deliverables (or parts of them), you are nevertheless not permitted to make changes, edits or modifications to the Deliverables.

  3. You are entitled to include summaries, calculations or tables that are contained in a Deliverable and are 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 entitled to refer to us in connection with them, directly or indirectly, vis-à-vis third parties.
  4. You are not entitled to rely on the draft version of a Deliverable (which is non-binding), but only on its final written version. Draft versions of a Deliverable serve solely our internal purposes and/or coordination with you; they therefore represent only a preliminary stage of the Deliverable, are neither final nor binding and require further review. We are not obliged to update a final Deliverable with regard to circumstances that come to our attention or occur after the date of completion of our work stated in the Deliverable or, in the absence of such a date, after delivery of the Deliverable. This does not apply if otherwise agreed.

Limitation of liability

  1. We are liable for damages or reimbursement of expenses within the scope of the statutory provisions for injury to life, body or health.
  2. For other damage, we are liable, exclusively in accordance with the following provisions, for damage caused by fraudulent conduct, intent or gross negligence. In the case of simple negligence, our liability is limited 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, which results from the liability risks of the respective engagement agreement, separately for each engagement agreement. This also applies if liability should arise towards a person other than you; in this case, § 334 BGB applies. If no liability cap has been agreed in the respective engagement agreement, we are liable in each case up to the amount of the agreed fee.
  3. A claim for damages can only be asserted within a preclusion period of one year after the person entitled to claim has become aware of the damage and of the event giving rise to the claim, but no later than five years after the event giving rise to the claim. The claim lapses if legal action is not brought within a period of six months after the written rejection of compensation, provided that you were informed of this consequence. The right to raise the defence of limitation remains unaffected.
  4. You are not entitled to assert contractual claims or bring proceedings in connection with the Services, or generally on the basis of the engagement agreement, against our subcontractors, shareholders, members of management, partners or employees. You undertake to assert contractual claims exclusively against us and to bring proceedings only against us.

Indemnification

  1. You are obliged to indemnify us, our subcontractors, shareholders, members of management, partners or employees against all claims by third parties (including your affiliated companies and lawyers) and against any resulting obligations, damage, costs and expenses (in particular reasonable external legal fees) that result from the use of the Deliverable by third parties or from a third party relying on the Deliverable, where the Deliverable was passed on directly or indirectly by you or at your instigation. This obligation does not apply if we have expressly agreed in writing that the third party may rely on the Deliverable.

Rights of use

  1. In performing our Services, we are entitled to use data, software, templates, aids, tools, models, systems and other methods and expertise (“Know-how”) that are our property. Notwithstanding delivery of the Deliverable, the intellectual property in the Know-how (including any improvements developed or insights gained in the course of performing the Services) and in all working papers compiled in the course of the Services (with the exception of the Client Information reproduced in them) remains with us.

Confidentiality

  1. Unless otherwise provided in the engagement agreement, neither contracting party is entitled to disclose to third parties the contents of the engagement agreement or any other information that has been provided by or on behalf of the other contracting party and that, on reasonable consideration, is confidential and/or is to be treated as worthy of protection. However, the contracting parties are permitted to disclose such information to the extent that it
    1. has become or becomes publicly known without breach of the engagement agreement,
    2. was subsequently provided to the recipient by a third party who, to the recipient’s knowledge, is not bound by any duty of confidentiality towards the disclosing party with regard to the information,
    3. was already known to the recipient at the time of disclosure or was subsequently developed independently,
    4. is disclosed to the extent necessary to enforce the recipient’s rights under the engagement agreement,
    5. must be disclosed on the basis of statutory or regulatory requirements.
  2. The contracting parties are permitted to use electronic media to exchange and transmit information. Such use does not in itself constitute a breach of the duties of confidentiality under the engagement agreement. The contracting parties are aware that the electronic transmission of information (in particular by email) involves risks.
  3. For purposes in connection with the performance of our Services, to comply with professional regulations, to avoid conflicts of interest, for the purposes of quality and risk management and accounting, and/or in connection with the provision of other administrative and IT support services (together “Processing Purposes”), we are entitled to pass on Client Information to third parties acting on our behalf, who may collect, use, transfer, store or otherwise process such data in the various jurisdictions in which they operate (together “process”). We are responsible to you for ensuring the confidentiality of your Client Information.

Data protection

  1. For the Processing Purposes referred to in Clause 22, we, our subcontractors, shareholders, members of management, partners or employees and third parties acting on our behalf are entitled to process Client Information that can be attributed to specific persons (“personal data”) in the various jurisdictions in which we and they operate. We process personal data exclusively in accordance with professional regulations and applicable law, in compliance with the German Federal Data Protection Act (BDSG) and the GDPR. We oblige all contractors who process personal data on our behalf to comply with these provisions as well.
  2. You warrant to us that you are authorised to provide us with personal data in connection with the performance of our Services and that the personal data provided to us has been processed in accordance with applicable law.

Fees

  1. Your payment obligation comprises payment of our fees and certain expenses for our Services in accordance with the relevant description of services or its annexes. You are also obliged to reimburse us for other reasonable expenses incurred by us in performing our Services, unless a different arrangement has been made in the individual case. Our fees are exclusive of taxes or similar charges, or customs duties, fees or levies arising in connection with the Services; these are to be borne by you (with the exception of general taxation of income). We may request reasonable advance payments on our fees and reimbursement of expenses and may make delivery of our Deliverables conditional upon full satisfaction of our claims. Unless otherwise provided in the description of services, fees are due immediately upon receipt of our invoice.
  2. We are entitled to additional fees to the extent that events beyond our control (including your acts or omissions) prevent us from performing the Services as originally planned, or if you entrust us with additional tasks.
  3. To the extent that we are obliged by law or by judicial or other sovereign order to provide information as evidence or personnel as witnesses in connection with our Services or the engagement agreement, you are obliged to reimburse us for the time and costs incurred as a result (including external legal advice costs), provided that we are not ourselves a party to the proceedings or the subject of the investigation, or to the extent that we are not compensated by public authorities.

Force majeure

  1. Neither contracting party is responsible for a breach of the engagement agreement (with the exception of payment obligations) if the breach was caused by circumstances beyond the control of the contracting parties (“force majeure”).

Term and termination

  1. The terms of the engagement agreement apply to the Services under this engagement agreement regardless of when they are performed (including Services performed before the engagement agreement was signed).
  2. The engagement agreement ends upon completion of the Services. Each contracting party is entitled to terminate the engagement agreement or a particular Service early by giving 14 days’ notice in writing. In addition, we are entitled to terminate the engagement agreement or a particular Service without notice if, on reasonable consideration, we conclude that we can no longer perform the Services in accordance with applicable law or our professional obligations. §§ 626 and 627 BGB remain unaffected.
  3. You are obliged to pay us for Services already begun or completed and to reimburse us for expenses and outlays incurred by us up to the date of termination of the engagement agreement.
  4. Our respective duties of confidentiality under the engagement agreement continue to apply for a period of 10 years after termination of the engagement agreement. All other provisions of the engagement agreement that establish rights and obligations of the contracting parties beyond termination of the engagement agreement continue to apply without time limit after its termination.

Governing law and place of jurisdiction

  1. German law applies to the engagement agreement and to all non-contractual matters or obligations arising from the engagement agreement or the Services.
  2. The exclusive place of jurisdiction for all legal disputes arising in connection with the engagement agreement or the Services is Gütersloh, Germany, or, at our option, (i) the court at the seat of our office primarily concerned with performing the Services or (ii) the courts at the place where you have your registered office.

Miscellaneous

  1. The engagement agreement constitutes the entire agreement between the contracting parties with regard to the Services and the other matters governed by the engagement agreement and supersedes all prior agreements, understandings and declarations in this respect, including previously concluded confidentiality agreements.
  2. The engagement agreement and/or the description of services (and any amendments to them) require written form in accordance with § 126(1) BGB. For the engagement agreement to be effective, it is sufficient for each contracting party to sign a separate counterpart of the same document.
  3. Each party assures the other that the person signing the engagement agreement and/or the description of services on its behalf is authorised to bind the respective party contractually.
  4. You warrant that your affiliated companies or other parties for whom the Services are performed are bound by the terms of the engagement agreement and the description of services.
  5. You hereby agree that we may act for other clients, including your competitors.
  6. Assignment of rights, obligations or claims under the engagement agreement is not permitted.
  7. Should one or more provisions of the engagement agreement be partially or wholly invalid, void or otherwise unenforceable, this does not affect the validity of the remaining provisions.
  8. In the event of contradictions or ambiguities between the provisions of the engagement agreement, the following order of precedence applies (unless expressly agreed otherwise): (a) the cover letter, (b) the relevant description of services of the engagement agreement, (c) the declaration of consent, (d) these General Terms of Engagement and (e) the other annexes to the engagement agreement.
  9. Neither party is entitled to use or refer to the name, logo or trademark of the other party without its prior consent.
  10. Provided that we receive your prior consent through the enclosed declaration of consent, we may name your company publicly in connection with the Services provided or otherwise identify you as our client.
  11. Our subcontractors, shareholders, members of management, partners or employees are entitled to invoke the limitations in Clauses 14 to 17 and the provisions of Clauses 18, 22, 23 and 38.

Would you like to talk in person? The initial consultation is free of charge and without obligation.

Confidential initial consultation