General Terms and Conditions
§ 1 General
(1) The following General Terms and Conditions shall apply to all contracts, services and work performed by Semler Company GmbH & Co. KG, Peter-Lenné-Straße 22, 14195 Berlin, Germany (hereinafter referred to as “Semler Company”) to its customers (hereinafter referred to as “Customer”). These terms and conditions shall apply in their respective version as a framework agreement also for future contracts with the same Customer without Semler Company having to refer to them again in individual cases; in such cases, Semler Company shall inform the Customer immediately of any changes to the General Terms and Conditions.
(2) Semler Company exclusively targets companies with its offers. Consequently, these general terms and conditions do not apply to contracts with consumers.
(3) Deviating regulations of the Customer shall not apply unless Semler Company has agreed to them in writing. This requirement of consent is applicable in any case, e.g. also if Semler Company performs the service without reservation with the knowledge of the Customer’s terms and conditions. Agreements made with the Customer in individual cases (including collateral agreements, supplements and amendments) shall always take precedence over these General Terms and Conditions. The content of these agreements shall be governed by a written contract or written confirmation by Semler Company. Legally relevant declarations and notifications to be made by the Customer to Semler Company after conclusion of the contract (e.g. setting of deadlines, reminders, declaration of withdrawal) must be made in writing to be effective.
(4) Agents and representatives of Semler Company are not authorized to make verbal collateral agreements. If they conclude additional verbal agreements or give assurances that go beyond the written service contract, these shall always require written confirmation by Semler Company to be effective.
§ 2 Services of Semler Company, Commissioning
(1) Semler Company provides services for clients mainly in the field of management consulting for transformation processes.
(2) A contract is concluded when the client accepts the offer – usually by signing the submitted offer. A contract and other agreements shall in any case only come into existence upon confirmation of the order by Semler Company in writing or by e-mail.
(3) Semler Company reserves the right of ownership and copyrights of the offer as well as the provided concepts, pitches, catalogues, documentation (e.g. drawings, plans, calculations) or documents – also in electronic form. These documents are only entrusted for the purpose of the respective offer and may not be copied or made available to third parties, even in extracts, without the express consent of Semler Company. This applies in particular to such documents that are designated as “confidential”; the Customer shall require the express written consent of Semler Company before forwarding them to third parties.
(4) If Semler Company submits an offer to a Customer and unless otherwise agreed, Semler Company shall be bound by the offer for a period of 2 weeks after submission. In individual cases a longer period of commitment may be agreed. Unless otherwise expressly agreed, the documents belonging to an offer by Semler Company, such as concepts, pitches, illustrations, drawings, shall only be approximations.
§ 3 Execution of orders
(1) Semler Company organizes the agreed upon services independently and autonomously. Semler Company shall independently determine the type, sequence and classification of the work, in particular the number of consultants it may employ.
(2) Semler Company shall be entitled to employ agents for the execution of the orders. In the case of the assignment of essential services, Semler Company shall notify the Customer in writing at least two weeks prior to their assignment. The Customer may reject a vicarious consultant only for good cause.
(3) Semler Company will execute each order in accordance with the concept and principles of proper professional practice and the latest state of the art in terms of an appropriate and economical solution.
(4) Semler Company is required to document the execution of each order to a reasonable extent. The content and scope may be specified in more detail in the order. Semler Company shall hand over the documentation together with the other deliverables to the Customer no later than at the end of each order.
(5) The Customer may request changes to the content and scope of the services as far as this is reasonable for Semler Company. The foregoing shall not apply to services already rendered. Semler Company will, if the changes are not only insignificant, determine the time delays and additional expenses arising as a result of the requested changes and the parties will agree on a corresponding adjustment of the contract. If the parties cannot reach an agreement, Semler Company is entitled to reject the change request. All changes in performance shall be set forth in a written supplementary agreement prior to the commencement of performance, in which the additional remuneration and any schedule changes shall be documented.
§ 4 Obligation to cooperate
(1) If the Customer designates a contact person when placing the order, that contact person shall be responsible for all questions in connection with the execution of this order.
(2) The Customer shall support Semler Company’s activities to a reasonable extent and shall provide the data, information and templates essential for the performance of the services according to the order.
(3) If the Customer provides Semler Company with templates for use within the scope of the order, the Customer shall be responsible for ensuring that it is entitled to provide and use these templates. The Customer shall indemnify, hold harmless and defend Semler Company in this respect at its own expense against all claims of third parties or liability.
(4) The Customer shall inform Semler Company within a reasonable period of time, generally no more than five working days, whether the Customer accepts or rejects a proposal submitted to him by Semler Company for the design and execution of the order.
§ 5 Remuneration
(1) Semler Company receives remuneration for the services agreed upon on the basis of an hourly or daily rate, in accordance with the conditions specified in the respective order.
(2) Remuneration within the meaning of paragraph (1) above is calculated without travel expenses and without travel time, which is charged according to expenditure. For travel by car Semler Company charges 30 cents per kilometer driven and, if applicable, the expenses for a rental car. For train travel Semler Company will book first class tickets and for air travel economy class tickets up to four hours’ flight time and business class tickets if the flight time is more than four hours. Travel time is charged at 30% of the traveling consultant’s daily rate.
(3) Additional expenses or incidental costs incurred by Semler Company (e.g. for external video productions, transport costs or event organization) shall be borne by the Customer. Semler Company shall provide the original receipts upon request of the Customer.
(4) In case of remuneration on the basis of an hourly or daily rate Semler Company is obligated to document the beginning, end and content of its services in an orderly and verifiable manner.
(5) Unless otherwise expressly stipulated, Semler Company’s invoices are due and payable within 30 days of the invoice date without deductions. Invoices may be sent by e-mail. In case of default of payment, the statutory provisions shall apply.
(6) All fees are calculated net plus value added tax at the rate applicable at the time, which Semler Company states separately in its invoices.
§ 6 Deadlines
(1 ) The observance of any deadlines by Semler Company requires the fulfillment of the contractual obligations by the Customer.
(2) Deadlines indicated by Semler Company are considered to be non-binding, even in the case of written notification. The expiry of certain dates does not release the Customer from the obligation to set a reasonable grace period for the performance of the service and to declare that he will refuse the service after the expiry of the grace period. This shall not apply if Semler Company has expressly and in writing designated a deadline or a date as a so-called “binding completion date”. Semler Company shall regularly inform the Customer about the status of the execution of the order. Semler Company shall inform the Customer of foreseeable delays or of the risk that completion dates will be exceeded, to the extent that such delays or threats are apparent to Semler Company.
(3) If Semler Company is unable to comply with a binding completion date for reasons beyond its control, Semler Company shall inform the Customer thereof without undue delay and at the same time inform the Customer of the expected new completion date. If the service is not rendered even within the new period, Semler Company shall be entitled to withdraw from the order in whole or in part; Semler Company shall immediately refund any consideration already rendered by the Customer. This shall not affect the Customer’s rights of termination under § 9.
(4) The occurrence of default in performance by Semler Company shall be governed by the statutory provisions. A reminder by the Customer shall be required in any case.
§ 7 Acceptance
(1) If Semler Company owes the performance of work services, the Customer is obliged to inspect and accept the work immediately after completion, unless acceptance is obviously excluded due to the nature of the work. Semler Company may set the Customer a reasonable time limit for acceptance. An acceptance protocol will be prepared and must be signed by both parties to the contract. Acceptance shall be deemed to be tacitly granted if the result of the work is already being used in accordance with the contract before this time without any major objections. Acceptance cannot be refused due to minor defects. Acceptance shall be deemed to have been granted if the Customer does not accept the work within a reasonable period of time determined by Semler Company, although he is obliged to do so.
(2) Partial acceptances only take place if expressly agreed in the order.
§ 8 Rights to tangible and intangible work results
(1) Semler Company grants the Customer all transferable rights of use of the services rendered at the time of their creation. This includes in particular, but not exclusively, the right of reproduction, distribution, exhibition, lecture, performance and demonstration, the right to broadcast, the right of reproduction by means of analog and/or digital video and/or audio carriers, the right of reproduction of radio broadcasts analog and/or digital as well as online rights. The transfer includes the right of further transfer to third parties.
(2) If Semler Company employs third parties for the performance of the contract, Semler Company shall acquire their rights of use for the Customer without limitation in terms of time, place, purpose and in any other way and shall transfer these rights to the Customer to the same extent.
(3) Semler Company shall inform the Customer in advance about any restrictions of the rights of use.
(4) Semler Company is entitled to the copyrights. Semler Company may therefore use the services rendered, in particular all ideas, drafts and designs, for other customers in the same or modified form.
§ 9 Premature termination of contract
(1) Semler Company and the Customer may terminate the order prematurely if
- a period of notice is agreed in the order;
- in the cases of § 6, paragraph 2;
- there is good and sufficient cause. Good cause for termination without notice by Semler Company shall be deemed to apply in particular if
a. facts that raise serious doubts as to the ability of the Customer to perform the contractual services become apparent and the Customer is unable to remove these doubts within a period of 7 days after written request by Semler Company,
b. the customer is more than 60 days in arrears with the payment of an invoice.
(2) Any termination requires written form.
§ 10 Liability
(1) Apart from the liability for material defects and defects of title, Semler Company shall be liable without limitation if the cause of damage is based on intent or gross negligence. Semler Company shall also be liable for the slightly negligent breach of material obligations (obligations whose breach endangers the achievement of the purpose of the contract) as well as for the breach of cardinal obligations (obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the Customer regularly relies), but in each case only for foreseeable damage typical for the contract and not for indirect damage. Semler Company shall not be liable for the slightly negligent violation of other obligations than those mentioned above. The limitations of liability in this paragraph do not apply in the event of injury to life, body and health.
(2) If the liability of Semler Company is excluded or limited according to paragraph 1, this shall also apply to the personal liability of Semler Company’s employees, representatives and agents.
§ 11 Confidentiality
All information in connection with the order and the business relationship must be kept secret by both parties. In particular, Semler Company shall treat as strictly confidential all business transactions that come to its attention, such as printing documents, layouts, storyboards, numerical data, drawings, data carriers and other documents containing copyrighted material of the Customer. The parties shall impose the duty of confidentiality on all employees and/or third parties (e.g. consultants, suppliers, graphic designers, etc.) who have access to such business transactions. The confidentiality obligation shall apply indefinitely beyond the duration of the individual orders.
§ 12 Non-solicitation agreement
The Customer shall refrain, during the term of an order and 6 months after its completion, from inciting employees or vicarious consultants of Semler Company to breach the contract or from enticing them away in a similarly unfair manner.
§ 12 Documents, Right of Retention, Reference and Data Protection
(1) Semler Company shall use all information, documents or other aids, which it receives from the Customer or third parties for the execution of the order, exclusively for the performance of its tasks and shall treat them confidentially.
(2) Semler Company has the right of retention of the documents provided to it until the full payment of its claims. After settlement of its claims Semler Company shall surrender all documents which the Customer or a third party has handed over to Semler Company in connection with the execution of the order. This shall not apply to correspondence between the contracting parties or simple copies of reports, organization charts, drawings, lists, calculations, etc. prepared in connection with the order, provided the Customer has received the originals.
(3) Semler Company shall be authorized, after completion of the order, to name the Customer as a reference on its website, among other things, unless the Customer opposes this.
(4) Semler Company will electronically store and process the contents of the orders and the services provided within the scope of these orders in compliance with the data protection regulations. The electronically stored or other data may not be passed on to third parties unless there is a legal obligation to do so. The collection, processing and use of personal data by Semler Company is carried out in accordance with the applicable data protection regulations. This obligation continues even after termination of the cooperation.
§ 14 Final provisions
(1) If any provision of these General Terms and Conditions is or becomes invalid, the validity of the remaining provisions of the contract shall not be affected.
(2) The place of jurisdiction is Berlin. Semler Company shall also be entitled to bring an action against the Customer at its principal place of business.
(3) The business relations between Semler Company and the customer are subject to the law of the Federal Republic of Germany. The application of international uniform law, in particular UN sales law, shall be excluded.
As of: March 2020