Preamble
The companies of the THOMSEN GROUP International Strategy Consultants, in short TGISC®, as well as the THOMSEN GROUP Resulting GmbH TGISC, Dynamic Office in Charge: Gänsemarkt 43,
20354 Hamburg (Visitors) | PO box: THOMSEN GROUP, 20105 Hamburg and the THOMSEN GROUP Strategy GmbH TGISC, Dynamic Office in Charge: Gänsemarkt 43, 20354 Hamburg (Visitors) | PO box:
THOMSEN GROUP, 20105 Hamburg (hereinafter uniformly "TGISC®"), provide complex and highly individualized strategy consulting services for their national and international clients. In
order to promote an optimal cooperation between TGISC® and the client with the goal of mutual success, certain regularly occurring questions are clarified in advance as consulting
conditions in the form of general terms and conditions.
§ 1 Scope and conclusion of contract
The following consulting terms and conditions shall apply to all contracts, purchase orders, orders, deliveries and services between the client and the respective company of TGISC®
with which the client concludes a contract. They are an integral part of the entire business relationship. Insofar as the client also uses General Terms and Conditions, the General
Terms and Conditions of TGISC® shall prevail, unless the parties agree otherwise in writing. Verbal collateral agreements, promises and amendments to the contract shall only be
effective if TGISC® confirms them in writing. This shall also apply to a waiver of this formal requirement. A declaration transmitted by email shall be deemed equivalent to the
written form.
Offers made by TGISC® are subject to change.
§ 2 Confidentiality
TGISC® undertakes to treat as confidential all business secrets of which it becomes aware in the course of the cooperation with the client. This obligation shall continue to exist
after the end of the contract, furthermore in the event that a contract is not concluded. The client consents to the disclosure of information, including business secrets, as far as
this is necessary for the cooperation with third parties. The consent shall apply irrespective of whether the client or TGISC® has commissioned or is to commission the third party. At
the request of the client, TGISC® shall make the cooperation with third parties conditional upon the respective third party making a separate declaration regarding its duty of
confidentiality.
The client undertakes to treat as confidential any business secrets of which it becomes aware through TGISC®, including such contents and strategies which are communicated to the
client as a presentation of the work results of TGISC® (also with regard to preliminary work, considerations, concepts and other elaborations). The client may use, modify, pass on to
third parties or otherwise exploit the work results of TGISC® only within the scope of the purpose of the contract. In case of doubt, the express consent of TGISC® shall be
obtained.
§ 3 Signing
TGISC® shall be entitled to sign the work results produced by it appropriately and to refer to the support of the Client in its communication. This shall not apply if the
contracting parties exclude this right in writing.
§ 4 Scope of services
The scope of the services to be provided by TGISC® shall be based on the individual agreements.
Unless an individual agreement has been made or deviating regulations have been agreed upon, a so-called innowait overall strategy is the basis of all following services for all
realization services (regardless of whether these are carried out by TGISC®, the client or third parties). In no case does the agreed remuneration for the innowait overall strategy,
regardless of whether its factual effort or a combination of recognition fee and success fee is paid, include so-called realization services. The aforementioned realization services
are based on the conviction of TGISC® to prove the success of the recommended strategies, concepts and measures in practice. For more details on remuneration, see §9 Remuneration.
TGISC® shall only undertake an examination under competition law or an examination of the protectability or registrability of property rights on the basis of a separate agreement
with the client. In the absence of a separate agreement, the client shall examine the work results of TGISC® prior to their use with regard to the admissibility under (competition)
law and, if applicable, with regard to the protectability and registrability of property rights. If the client has doubts about the admissibility, protectability or registrability, it
shall inform TGISC® thereof without delay. In this case, the contracting parties shall discuss the further procedure together.
TGISC® shall not be obliged to surrender files, drafts, concepts or similar to the client unless such surrender has been expressly agreed. Upon surrender, the client shall only be
entitled to modify the files surrendered if TGISC® expressly agrees to such modification. Apart from that, the obligation to surrender shall only exist insofar as the surrender of the
respective work equipment is necessary for the performance of the contract.
§ 5 Order processing and the client's duty to cooperate
The client undertakes to inform TGISC® in due time about the type, scope and timing of the services commissioned and to provide all information and documents required for the
proper execution of the order in due time and free of charge. If special confidentiality levels exist for these documents and must therefore be observed, the client shall inform
TGISC®. In the realization phase, the following shall apply in particular to Presence-P, Placement-P and People-P: Unless the contracting parties expressly agree otherwise, the client
shall only provide TGISC® with documents (photos, models or other documents) which have been approved for publication and reproduction. TGISC® shall submit correction samples to the
client before duplication is carried out. Reproduction shall only take place after express approval by the client. TGISC® shall monitor the proper execution of the commissioned
measures.
The client shall provide TGISC® with at least one knowledgeable contact person, independent of the contact persons on the board of directors or management, who is equipped with the
possibilities and powers required for smooth implementation (procurement of documents or information, approvals, etc.). The contact person must either be able to make the necessary
decisions himself or be able to bring them about at short notice.
If protocols or order confirmations are prepared and made available to the other contracting party, they shall be binding for further project processing, provided that the
contracting party agrees or does not object within eight days. Insofar as the client knows or must know that TGISC® has already started with the execution of the respective service,
the objection must be made without delay.
The client shall check the work results delivered by TGISC®. Section 377 of the German Commercial Code (HGB) shall apply to all services provided by TGISC®.
In the realization phase, this applies in particular to Presence-P, Placement-P and People-P:
Unless the client expressly insists on being present at photo, radio, film, television or other productions and on making directing decisions, these decisions shall be the sole
responsibility of TGISC®. Subsequent changes shall be remunerated separately.
The client shall indemnify TGISC® against any claims asserted by third parties against TGISC® as a result of a change in the order by the client.
§ 6 Commissioning and offers from third parties
TGISC® shall be entitled to perform the work assigned to it itself or to commission suitable third parties to perform the work. Insofar as TGISC® obtains third-party offers for the
execution of the order or prepares or carries out an invitation to tender, but the client awards the order elsewhere, TGISC® shall charge a separate fee for obtaining the offer, which
shall be calculated on the basis of the actual time and costs incurred on the basis of the TGISC® fee list. If an external order is handled by TGISC®, TGISC® shall be entitled to
charge a separate handling fee, the amount of which shall be based on the TGISC® fee list.
Individual orders up to Euro 5,000.00 as well as orders within the scope of ongoing work do not require the prior obtaining of cost estimates and do not require the client's
consent.
The client shall only be entitled to commission third parties within the scope of the tasks supervised by TGISC® for the client with the express consent of TGISC®.
§ 7 Delivery
Unless expressly agreed otherwise in individual cases, delivery periods and delivery dates specified by TGISC® shall be non-binding performance time provisions. Bindingly agreed
delivery periods and delivery dates shall lose their binding force if the client itself does not meet its obligations to cooperate (procurement of documents or supply of information,
releases, etc.) as agreed, in particular if it fails to do so in due time. In the event of unforeseen obstacles beyond the control of TGISC® , delivery periods and delivery dates
shall be extended by the duration of the existence of the obstacles, provided that such obstacles have a significant influence on the delivery. TGISC® shall notify the Client of the
beginning and end of any impediments without undue delay. If an extension of the delivery periods or a postponement of delivery dates is unreasonable for the client, the client may
withdraw from the contract. In case of doubt, an actual or expected delay of more than eight weeks shall be deemed unreasonable, unless the client is responsible for it.
Insofar as TGISC® is obliged to transfer ownership of products, templates, file carriers or other working materials, it shall retain ownership thereof until full payment of all fee
claims arising from the business relationship. The client shall inform TGISC® without delay of any compulsory execution measures of third parties against the goods subject to
retention of title. For this purpose, the client shall submit the documents required for an intervention. The duty to inform shall also apply in the event of any other type of
impairment. Irrespective thereof, the client shall inform third parties in advance of the existing rights to the products, templates, file carriers and other working materials. The
costs of an intervention by TGISC® shall be borne by the client insofar as the third party is not in a position to reimburse such costs.
§ 8 Transfer of rights of use
Upon full payment of the services invoiced by TGISC® in each case, the client acquires the rights of use to the services paid for in each case, irrespective of whether these are
protected by copyright or not.
In this respect, the aforementioned payments and services also relate to agreements concluded for a specific term; the aforementioned transfer of rights of use shall therefore only
apply after settlement of the total liability, which may be composed of partial sums. Rights of use may, however, be granted prior to this, but this must be in writing.
The rights of use are limited to the contractually agreed purposes, in particular to the agreed or relevant sales territory, the duration of the contract (as well as in the
realization phase, in particular for the Presence-P, Placement-P and People-P the agreed circulation applies. In case of doubt, the right of use does not extend to further editions).
Any further transfer to third parties shall only be permitted with the express consent of TGISC®. The client shall not be entitled to modify the proposals submitted during the
execution of the order, irrespective of whether they are protected by copyright or not.
Insofar as TGISC® uses third parties for the performance of the services incumbent upon it, it shall acquire the right of use to the extent agreed with the client and shall
transfer it to the client in accordance with the aforementioned provisions.
§ 9 Remuneration
The TGISC® compensation consists of the following elements:
If the contracting parties do not expressly agree on the remuneration of TGISC®, the client shall remunerate the services of TGISC® at the daily rates specified in the fee
schedule, with a minimum (recognition) fee of Euro 100,000.00 p.a. (The remuneration of the services with a reduced recognition fee requires the agreement of a success fee). In
addition to the effort and The client shall remunerate the services of TGISC® with a success fee in the amount of 25% on the difference between the expected and actual success; in any
case, the success fee, which refers without exception to the respective agreed service (see also: §4 Scope of Services even with the agreement of a success fee as remuneration for a
5P overall strategy, realization services, which are always to be remunerated separately, are therefore in no case owed. ), are based on an appropriate participation in the desired
(and achieved) success. In this context, a "positive doubling" to compensate the entrepreneurial risk of TGISC® in relation to the percentage by which the factual expense was reduced
to the recognition fee shall be deemed appropriate. Example: If the recognition fee is defined as 60% lower than the actual expense, the success fee (if the defined success is
achieved or exceeded, defined as "threshold value") shall overcompensate the actual expense by 120%; if the recognition fee is defined as 40% lower than the actual expense, the
success fee (if the defined success is achieved or exceeded, defined as "threshold value") shall overcompensate the actual expense by 80%. For this purpose, an individual performance
bonus is usually owed in relation to the amounts exceeding the defined threshold value. In this respect, the amounts exceeding the threshold value are divided in a certain ratio, e.g.
20% success fee for TGISC®, 80% remain with the client. Until the actual expenses of TGISC® have been settled, the amounts exceeding the threshold value shall flow to TGISC® in full;
however, this shall not lead to a deviation from the agreed remuneration. In this respect, the payments from the success fee which, unless otherwise agreed, are made annually and end
at the earliest 7 years after the termination of (any) cooperation, may be lower in subsequent years than would result in the year in question, namely in the event that more was paid
in the previous year, or the previous years, for the agreed priority compensation of the actual expenses than resulted according to the percentage success fee definition.
Consequently, the aim is to ensure that, in the event of success, the actual expense of TGISC® is offset on a priority basis, but also that, on average over the years in which success
fees are paid, the percentage success fee is not exceeded or overpaid.
Unless a separate agreement is made, TGISC® shall charge such services for which TGISC® has commissioned third parties at 19% of the respective invoice amount. TGISC® reserves the
right to agree on an individual minimum fee with the client. Insofar as the work results delivered by TGISC® are to be utilized by the client or third parties abroad, such utilization
shall be remunerated separately.
In the event of an increase in the total annual budget, the remuneration of TGISC® shall increase accordingly. If the client reduces the total annual budget, the remuneration of the
TGISC® is calculated on the total budget communicated in the previous year for the fiscal year. Since TGISC® favors defining individual annual fees independent of the annual budget,
TGISC® is happy to reach an individual agreement with the client.
Insofar as the client changes orders placed with TGISC® which affect the planning or execution of the services of TGISC® to a more than insignificant extent, or cancels orders -
insofar as possible - in whole or in part, the client shall pay the previously agreed remuneration plus all income of TGISC® in this respect, in each case less 20% of saved expenses,
in addition to all expenses incurred up to the notification of the change. Both contracting parties reserve the right to prove that the expenses saved were higher or lower. The client
shall indemnify TGISC® against any claims asserted by third parties against TGISC® as a result of the order change or cancellation or the measures which become necessary as a result
thereof.
Fee schedule for daily rates (in EUR). C-suite - CEO: 12,400.00. C-level: 9,500.00. executive vice president: 7,500 Consulting - management consulting: 5,800.00. senior consulting:
5,200.00. consulting: 3,600.00. junior consulting: 2,000.00. management strategy: 5,800.00. strategy: 4,900.00. support - operating management: 2,820.00. programming / internet /
editing: 1,960.00. in-house production / manufacturing: 920.00.
Travel and transport costs incurred for trips or deliveries to the client or to the location in question shall be charged by TGISC® in the amount of the costs actually incurred and to
be proven. The time spent on travel shall be charged according to the hourly rates of the fee schedule. In the case of supervision of film, radio and television work, print
supervision and print approvals, the time spent shall be remunerated in accordance with the TGISC® fee schedule.
Travel and transport costs incurred for trips or deliveries to the client or to the location in question shall be charged by TGISC® in the amount of the costs actually incurred and to
be proven.
Service Fee/Honorarium: To all third party invoices, an additional service fee of 19% will be charged.
§ 10 Terms of payment
The services invoiced by TGISC® shall be paid by the Client within ten days after receipt of the invoice. All prices are in Euro and are net prices to which the statutory value
added tax must be added. TGISC® shall not grant any cash discounts. Third party discounts shall be passed on to the client.
The remuneration of TGISC® attributable to a fiscal year shall be paid in advance at the beginning of the fiscal year. Unless otherwise agreed, the client shall be entitled to pay
the remuneration on the 1st of each month as follows: In the first contract year 33% of the annual remuneration in the first contract month and the remaining annual amount in 3 equal
installments. In the following years in 4 equal installments. This does not apply if the client is more than fourteen days in arrears with a partial amount. In this case, the total
annual remuneration is due immediately.
Insofar as the total budget of the Client within a fiscal year is significantly concentrated on a certain period of the fiscal year, the contracting parties may agree that the
remuneration is to be paid in unequal partial amounts. The details shall be agreed separately and shall be recorded in writing. Irrespective of this, TGISC® shall be entitled to
demand advance payments for partial services rendered by it, the amount of which shall be based on the ratio of the partial service rendered to the total service to be rendered.
TGISC® shall be entitled to request an appropriate advance payment for expenses to be used for the client's purposes in due time before the claim for reimbursement of expenses
arises.
Payment shall not be deemed to have been made until it has been received in the account of TGISC® or, in the case of payment by check, until it has been credited without
reservation.
§ 11 Default, set-off and rights of retention
The Client shall be in default after expiry of the payment period specified in § 10. TGISC® shall be entitled to charge default interest in the amount of eight percentage points
above the base interest rate. TGISC® reserves the right to claim damages in excess thereof. In the event of default on the part of the Client, TGISC® shall be entitled to perform
outstanding contractual obligations towards the Client only against advance payment or against provision of security in the full amount. Furthermore, TGISC® shall be entitled to
revoke any rights of use transferred to the client until all claims arising from the business relationship have been settled in full. TGISC® shall be entitled to withdraw from the
contract if the delay lasts longer than fourteen days. The client may only offset counterclaims if these have been legally established or are undisputed. A right of retention can only
be asserted insofar as it is based on the same contractual relationship.
Insofar as TGISC® is dependent on the client's cooperation and the client does not provide these services properly, in particular not in due time, TGISC® shall not be in
default.
§ 12 Liability
TGISC® shall be liable in accordance with the principles of a prudent businessman. TGISC® shall be liable for a breach of duty for which TGISC® is responsible in accordance with
the statutory requirements. If the client claims damages, TGISC® shall only be liable for foreseeable average damages and limited to 5% of the order value. Any further claims of the
client shall be excluded. This shall not apply if TGISC® has assumed a guarantee in an individual case, furthermore not for the breach of cardinal obligations and in case of injury to
life, body or health which is based on a negligent breach of duty by TGISC® or an intentional or negligent breach of duty by a legal representative or vicarious agent of TGISC®. With
regard to other damages, TGISC® shall only be liable in the event of an intentional or grossly negligent breach of duty with regard to its own conduct as well as with regard to the
conduct of a legal representative and vicarious agent.
TGISC® shall not be liable if it has acted on the basis of templates, specifications and/or approvals of the client. This shall not apply if TGISC® has, in breach of duty, failed to
inform the Client of the risk involved in the implementation in the respective case.
Insofar as the contracting parties have agreed that TGISC®, in deviation from the innowait system with FutureAssets® and LiveResearch®, TGISC® only uses data from providers and other
sources which it considers reliable. For this purpose, TGISC® cooperates with renowned institutes. TGISC® is not liable for the accuracy of the data obtained, regardless of the scope
of its activities. As far as TGISC® has doubts about the correctness of certain data in individual cases, it points this out to the client and discusses the further procedure with the
client (limitation of the data material, evaluation of other sources, conversion to primary research, the innowait system with FutureAsset® and LiveResearch® etc.).
The client shall indemnify TGISC® against claims of third parties if TGISC® has acted upon the client's express request. The client shall be responsible for legal checks, whereby
TGISC® shall provide legal cover in the form of a separately remunerated third-party service at the express request of the client. TGISC® shall recommend legal checks to the client
with the due diligence of a prudent businessman.
Insofar as TGISC® at the instigation of the client commissions third parties with services which are not part of the agreed catalog of services of TGISC® (third-party services),
TGISC® shall not be liable for the work results of the commissioned third parties. TGISC® shall not be liable to the extent that TGISC® is dependent on the preliminary work of third
parties and the respective third party does not provide the work results in due time. To the extent that TGISC® is entitled to claims for damages against the third party, it shall
assign such claims to the client up to the amount of the client's damages.
Insofar as claims for damages against TGISC® which are not based on injury to life, body or health of the client are not excluded for slight negligence, such claims shall become
statute-barred within one year after the claim has arisen.
§ 13 Cancellation
Each contracting party may terminate the contract in accordance with the individually agreed terms and conditions. TGISC® points out that a termination of the contract shall not
affect such contracts which TGISC® has concluded with third parties in the interest of the client in fulfillment of the contractual services (firm orders). The Client's obligations
resulting from such contracts with third parties shall not automatically expire by termination of the contract between TGISC® and the Client. The obligations of the client arising
from the contracts concluded with third parties, contract terms, termination options, etc. shall be governed by the content of the respective contracts. The client agrees to fulfill
these obligations even after the end of the contract or cooperation between TGISC® and the client.
Unless the contracting parties expressly agree otherwise, TGISC® shall not be obliged to store products, templates, file carriers or other working materials. Working materials
provided to the Client shall be returned to TGISC® upon request after completion of the contract, unless the parties have agreed otherwise.
§ 14 Place of performance, place of jurisdiction and applicable law
The place of performance for all performance obligations arising from the business relationship between TGISC® and the Client shall be Hamburg, unless the parties have expressly
agreed otherwise. The place of jurisdiction for all claims arising from the business relationship between TGISC® and the Client shall exclusively be Hamburg, insofar as the Client is
a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in Germany. The law of the Federal Republic of Germany shall
apply.
§ 15 Severability clause
Should individual provisions of the contract with the Client, including these General Terms and Conditions, be or become invalid in whole or in part, this shall not affect the
validity of the remaining provisions.
Status: July 2020