Last updated: June 2022
A. General provisions
1. Area of applicability
1.1 These General Terms and Conditions of Business (“GTCB”) will apply to all consulting and project services and other services (hereinafter collectively referred to as the “Services”) provided by Lünendonk & Hossenfelder GmbH (“Lünendonk”) to its customers (Lünendonk and the customer will be hereinafter also referred to as the “Party” and jointly as the “Parties”). They will also apply to all future deliveries, Services or quotes provided to the customer, even if not separately agreed upon again. These GTCB will only apply if the customer is an entrepreneur (Section 14 of the German Civil Code – BGB), a legal entity under public law or a public law special fund.
1.2 The Lünendonk GTCB will apply exclusively. The customer’s general terms and conditions of business will only apply if Lünendonk has expressly agreed to the same in writing. This will be the case even if Lünendonk does not expressly object to the customer’s general terms and conditions of business.
1.3 The general provisions of Section A will apply to all Lünendonk Services. The respective applicable special provisions in Section B will also apply to certain specific Services ordered via the online shop. In the event of conflicts and ambiguities between the general provisions of Section A and the special provisions of Section B, the special provisions of Section B will take precedence over the provisions of Section A.
2. Offer and conclusion of the contract
2.1 All offers from Lünendonk will be non-binding and subject to confirmation unless expressly designated as binding.
2.2 A contract will be concluded upon signature of Lünendonk’s offer documents by Lünendonk and the customer or upon an order placed by the customer and a corresponding order confirmation from Lünendonk (the “Contract”). Offer documents and the order confirmation will hereinafter be referred to as the “Order Document”.
3. Services and dates/deadlines
3.1 Lünendonk will provide the Services for the customer as described in the respective Order Document (the “Services”) and any agreed service changes (in accordance with Clause 4).
3.2 Within the framework of the subject matter of the Contract, Lünendonk will carry out the necessary Services under its own responsibility in a professional manner, taking the current state of technology and generally accepted methods and procedures into account.
3.3 Unless otherwise expressly agreed in the individual case, the work of Lünendonk will consist of the independent provision of Services, in particular the provision of consulting services to the customer. No specific result is owed or guaranteed.
3.4 To fulfil its contractual obligations, Lünendonk may also use expert third parties. In this scenario, Lünendonk shall select the person carefully and will be liable for the third party also providing its services with the customary due diligence.
3.5 The dates and deadlines provided by Lünendonk for Services are always approximate, except where a fixed date or deadline has been expressly promised or agreed upon.
3.6 In the event of force majeure or other events that are unforeseeable at the time of the conclusion of the Contract (for example, war, riots, invasions, acts of terrorism or sabotage, fire, earthquakes, floods or other similar natural disasters, strikes, lawful lockouts, shortage of labour, pandemics or epidemics, official measures or the failure of third parties to deliver, to deliver correctly or to deliver on time despite a congruent hedging transaction concluded by us), the Party affected by such events will be released from its performance obligations for the duration of the disruption and to the extent of its effect, even if said Party is in default. Instances of force majeure will not give rise to an automatic termination of the Contract. The Parties shall inform each other of such obstacles and adapt their obligations to the changed circumstances in good faith.
4. Service changes
4.1 Each Party may request a reduction, change or extension to the Services specified in the respective Order Document (a “Service Change”). Where the customer requests a Service Change, Lünendonk will examine this in a timely manner, and, if the requested Service Change is feasible for Lünendonk, it will provide the customer with a quote for the Service Change, stating, in particular, any possible effects on service periods and remuneration. If Lünendonk does not submit a quote to the customer in the individual instance, it will also notify the customer that this is the case.
4.2 Lünendonk will be entitled to require separate remuneration for the expenses incurred to review such change requests. In this scenario, Lünendonk will notify the customer of this without delay, including a corresponding quotation to review the change request.
4.3 All Service Changes will require the consent of both Parties and a written agreement concerning the same. Lünendonk will continue to provide the Services on the basis of the original Contract until a written agreement is concluded regarding the Service Change.
5. Cooperation obligations of the customer
5.1 The Services to be provided by Lünendonk will depend on close collaboration between Lünendonk and the customer and the latter’s cooperation obligations. Therefore, the cooperation obligations constitute material contractual obligations. In particular, the customer shall provide Lünendonk with all available information, documents and data required to provide the Services in a timely manner, free of charge and without being prompted to do so.
5.2 The customer will also accept the obligations and services (collectively the “Customer’s Services”) resulting from the offer and any agreed Service Changes.
5.3 If the customer fails to provide its Services in a timely manner, any delays will be at its expense. The customer shall bear the additional expenses incurred by Lünendonk, in particular the cost of providing its personnel or materials for an extended period, caused by the failure to provide the Customer’s Services in accordance with the Contract.
5.4 The customer will be liable to Lünendonk for ensuring that the Customer’s Services are complete, correct and free of third-party property rights that exclude or impair use by Lünendonk in accordance with the Contract.
6. Remuneration and payment terms
6.1 The type and amount of the remuneration received by Lünendonk for providing the Services will be determined by the Order Document, Lünendonk’s price list and any subsequent Service Changes.
6.2 The agreement concerning remuneration will be a net price agreement unless expressly agreed otherwise. Lünendonk will also charge the applicable statutory value added tax.
6.3 All invoices will be payable within fourteen (14) days of receipt of the invoice by the customer without any deductions.
6.4 If payment is not made on time, the customer will fall into payment default without the need for a warning. In the event of payment default, Lünendonk will be entitled to charge interest at the statutory rate, regardless of all other rights. If the payment default lasts for more than two (2) months, Lünendonk will be entitled to extraordinary termination of the Contract (in accordance with Clause 11).
6.5 If payment by instalments or staggered payments have been agreed upon, the total amount will become payable immediately if the customer is more than fourteen (14) days in arrears with an instalment or part payment.
6.6 The offsetting of the customer’s counterclaims or the retention of payments due to such claims will only be permitted if said counterclaims are undisputed or have been legally established or if these result from the same order under which the Service concerned was provided.
6.7 Lünendonk will be entitled to perform or provide outstanding Services in return for advance payment only or with the provision of security if circumstances become apparent after concluding the Contract which could substantially reduce the customer’s creditworthiness and which might therefore endanger the payment of any outstanding receivables from the customer under the respective contractual relationship.
7. Liability, damages and limitation period
7.1 Regardless of the legal grounds, Lünendonk will only pay damages in accordance with the principles set out below.
7.2 Lünendonk will incur unlimited liability for damages incurred as a result of breaches of its due diligence obligations in cases of wilful acts and gross negligence.
7.3 In cases of simple negligence, Lünendonk will be liable for breaching material contractual obligations (obligations whose fulfilment is essential for the proper performance of the Contract and on whose compliance the contracting partner regularly relies and may rely). In this scenario, the liability will be limited to damages typical of the Contract and that were foreseeable at the time of its conclusion.
7.4 In all other cases, liability for damages will be excluded, regardless of the legal nature of the claim. In particular, Lünendonk will not be liable for consequential damages due to defects, other indirect damages and lost profits.
7.5 The liability limitation and restriction set out in Clauses 7.3 and 7.4 will not apply to injury to life, limb and health if a defect has been fraudulently concealed, if a quality guarantee has been assumed or granted under the German Product Liability Act (Produkthaftungsgesetz) or other mandatory statutory provisions.
7.6 Liability claims will lapse one (1) year after the start of the statutory limitation period. This will not apply to the scenarios detailed in Clauses 7.2 and 7.5. The statutory limitation period will apply in those cases.
7.7 In case of Services ordered via the Lünendonk online shop, the provisions of Section B will also apply. In case of conflicts and ambiguity between the provisions of Clause 8 and those of Section B, the provisions of Section B will take precedence over those of Clause 8.
8. Intellectual property
8.1 Subject to payment in full by the customer, Lünendonk hereby grants the customer a non-exclusive, non-transferable right that is unlimited in terms of time over the work results and materials delivered under the Contract, to use these itself and exclusively within its own company or group of companies.
8.2 Any transfer to third parties or publication of the same will require Lünendonk’s express written agreement.
8.3 In all cases where its usage entitlement comes to an end (for example, in the event of termination without notice), the customer shall immediately cease use. In addition, it shall immediately return all supplied work results and materials. It shall also delete all copies of the same except where it is legally obliged to retain them for a longer period of time. It shall provide a written confirmation to Lünendonk that the above actions have been carried out.
8.4 The copyright and rights of exploitation will remain with Lünendonk.
9.1 The Parties shall treat all trade and business secrets and all information, documents and data designated as confidential or whose confidential nature is evident from the circumstances (the “Confidential Information”) that the respective other Party becomes aware of within the framework of the contractual relationship as strictly confidential. The above does not apply to such information which:
(a) has already become known to the public through no action or fault of the receiving Party;
(b) has been made accessible to the receiving Party by a third Party authorised to distribute such Confidential Information in good faith;
(c) was demonstrably already in the possession of the receiving Party at the time of receipt; or
(d) was developed by the receiving Party independently of the Confidential Information received from the disclosing Party.
9.2 The Parties shall ensure that their employees and commissioned third parties also comply with the secrecy and confidentiality obligations.
10. Data protection
10.1 The Parties shall comply with the respective applicable provisions under data protection laws. They shall also impose a data secrecy obligation on their employees working in connection with this Contract and its performance, except where such employees are already subject to a general obligation of this nature.
10.2 Where necessary in the individual case, the Parties will conclude further data protection law agreements.
11.1 The concluded Service Contract is binding and cannot generally be terminated.
11.2 The customer and Lünendonk may however terminate the Contract without notice for good cause. In case of termination without notice, Lünendonk will be entitled to remuneration for the Services provided prior to the termination taking effect. If the grounds of the termination for good cause are attributable to Lünendonk, the obligation to pay remuneration will not apply if the customer provides proof within three (3) weeks of the declaration of termination that the Services provided are of no use and no value to it as a result of the termination. If the grounds of the termination for good cause are attributable to the customer, then, in addition to the remuneration set out in sentence 1, Lünendonk will receive an additional lump sum for damages equal to 50% of the remuneration agreed upon for the Services that have not yet been performed. The customer will be entitled to prove that no damages have been incurred by Lünendonk or that the damages incurred by Lünendonk are lower. Lünendonk will be entitled to claim the actual damages incurred instead of the lump-sum amount.
11.3 The termination must be in writing to be valid.
12. Cancellation, fixed damages
12.1 The customer may withdraw from (cancel) the Contract before the start of the event booked by it by means of a written declaration. The time of receipt of the declaration by Lünendonk shall be authoritative when determining compliance with this deadline. Cancellation will be subject to payment of damages, calculated on a flat-rate basis as follows:
(a) The following applies to events:
25% of the attendance fee will be due in the event of cancellation more than six (6) weeks prior to the start of the event, and the full amount will be due in case of cancellation six (6) weeks or less prior to the start of the event.
(b) The following applies to other Services:
Agreed consulting days may be cancelled or postponed free of charge up to twenty-one (21) days before the agreed date. In case of cancellation less than twenty-one (21) and more than ten (10) days prior to the agreed date, 50% of the fee will be payable. Of this amount, 50% may then be credited towards a later date if the appointment is rescheduled. In case of cancellation ten (10) days or less prior to the agreed date, the full fee will be due. It is not possible to issue a credit note.
12.2 The customer will be entitled to prove that no damages were incurred by Lünendonk or that the damages incurred by Lünendonk are lower. Lünendonk will be entitled to claim the actual damages incurred instead of the lump sum for damages set out in this paragraph.
13. Other provisions
13.1 Lünendonk may include the customer and the nature of the order in its own reference lists and/or name the customer for marketing purposes, provided that this does not result in Confidential Information being disclosed.
13.2 The place of jurisdiction for any disputes arising under the business relationship between Lünendonk and the customer will be Memmingen, Germany, at Lünendonk’s discretion. Mandatory statutory provisions concerning exclusive places of jurisdiction will remain unaffected by this clause.
13.3 The relationships between Lünendonk and the customer will be governed exclusively by the law of the Federal Republic of Germany. The United Nations Convention governing the International Sale of Goods dated 11/4/1980 (CISG) will not apply.
13.4 If the Contract or these General Terms and Conditions of Business contain loopholes, the legally valid provisions the contracting Parties would have agreed upon in accordance with the economic objectives of the Contract and the purpose of these General Terms and Conditions of supply had they been aware of the loophole will apply to fill such loopholes.
B. Special provisions for the Lünendonk online shop
14. Area of applicability
14.1 In addition to the standard applicable provisions of Section A, the terms and conditions in this section will apply to all Contracts concluded via the online shop for Lünendonk events and the purchase of Lünendonk surveys and manuals.
15. Conclusion of the Contract
15.1 The presentation and promotion of Services and products in the online shop does not constitute a binding offer from Lünendonk.
15.2. For the purchase of Lünendonk surveys and manuals, the customer must first confirm that it is making the purchase on behalf of a company, association, or authority within the meaning of Section 14 of the BGB (German Civil Code). It then places an order by clicking on the button ‘Order manual now for a fee’ or ‘Order survey now for a fee’ and pays the purchase price or receives the invoice (for customers based in Germany only).
15.3. For the purchase of Lünendonk surveys and manuals, the customer places an order by submitting it via the online shop, clicking on the button ‘Buy manual now’ or ‘Buy survey now’. The customer must expressly the order confirm after checking the order data provided.
15.4. For the booking of Lünendonk events, the customer’s places a legally binding order by submitting its order via the online shop, clicking on the button ‘Pay to register now’. The customer is bound to its order for a period of two (2) weeks after placing it.
15.5. Lünendonk will immediately provide by email confirmation of receipt and acceptance of the survey order or event registration provided that the customer has filled in the required fields (marked ‘*’) in the order form and accepted these GTCB. With this confirmation of acceptance, a Contract is concluded between Lünendonk and the customer. Where a survey has been ordered and payment made by credit card or PayPal, the confirmation of acceptance shall contain the link required to download the survey ordered, such that performance within the meaning of § 362 (1) of the German Civil Code (BGB) is rendered with the confirmation of acceptance.
15.6. Should the supply or performance of the ordered goods or event not be possible, Lünendonk shall refrain from issuing a confirmation of acceptance. In this case a Contract is not concluded. Lünendonk shall inform the customer of this immediately and reimburse any payments already received without delay.
16. Payment terms
16.1. Payment for the purchase of Lünendonk manuals shall be by invoice.
16.2. For the purchase of Lünendonk surveys, payment shall either be by invoice, PayPal or credit card.
16.3. For the booking of Lünendonk events, payment shall either be by invoice, PayPal or credit card.
16.4. For orders placed by customers based abroad, payment of the purchase price shall be in the manner specified in the online shop (in particular by credit card or PayPal) at the customer’s discretion. Payment by invoice is not available. Any bank charges or other ancillary costs of monetary transactions shall be borne by the customer.
17. Retention of title
The goods supplied will remain our property until full payment of the purchase price.
18.1 Lünendonk will be liable for material defects or defects of title in relation to the delivered items in accordance with the applicable statutory provisions, in particular Sections 434 et seq. of the German Civil Code (BGB). However, the special provisions of Section A Clause 7 of these General Terms and Conditions of Business will apply to any claims for damages by the customer. The customer must carefully inspect the goods immediately after shipping. The delivered goods shall be deemed to have been approved by the customer if a defect is not reported to Lünendonk (i) in the case of obvious defects within five (5) working days of delivery or (ii) otherwise within five (5) working days of the discovery of the defect. If the customer fails to report said defect, the customer’s statutory claims will be excluded.
18.2 An additional guarantee only exists for the goods delivered by Lünendonk if this was expressly stated in the order confirmation for the respective item.
18.3 The limitation period for statutory defect claims will be one (1) year and will commence upon delivery of the goods.
The Contracts with the customer will be concluded exclusively in German or English, depending on whether the customer places the order via the German-language or English-language page of the online shop. If the customer places the order via Lünendonk’s German-language website, the German version of these General Terms and Conditions of Business alone will apply. If the order is placed via Lünendonk’s English-language website, the English version of these General Terms and Conditions of Business will be solely applicable.
Lünendonk & Hossenfelder GmbH