General Terms and Conditions (GTC) of Fomacon Management GmbH, DüSseldorf

The following General Terms and Conditions form the basis of our contracts.

1. General

Orders from fomacon are exclusively concluded and executed according to these General Terms and Conditions. Conflicting conditions of the client or contractor are not valid unless and until they are acknowledged in writing.

2. Services of Fomacon

  1. The activity of fomacon consists – unless otherwise agreed in individual cases – of independent and instruction-free consulting for the client as a service.
  2. A specific success is neither owed nor guaranteed. The client decides in sole responsibility about the timing as well as type and scope of measures recommended by fomacon or coordinated with fomacon. This applies even if fomacon accompanies the implementation of coordinated plans or measures by the client.
  3. The specific content and scope of the activities to be performed by fomacon is based on the written order. If the need for additional or supplementary activities arises, fomacon will draw the client’s attention to this. In this case, an extension of the order by fomacon also occurs if the client requests or accepts the additional or supplementary activity.
  4. fomacon assumes that the information provided by the client or documents made available as well as the transmitted numerical data are complete and correct in its activities. fomacon is not obliged to verify the correctness, completeness or orderliness or to conduct its own research. This also applies if, within the scope of the order placed, fomacon is to carry out plausibility checks or value assessments which are solely based on the information, details or documents provided by the client and do not include their verification.
  5. The provision of legal or tax advisory activities is excluded as contract content. If these are provided, it is agreed that the service is not provided by fomacon, but by the respective supplier (tax consultant or lawyer). fomacon is only liable for any damages caused by them up to the amount of the respective professional liability insurance of the advisor bound to professional secrecy. fomacon has the right to refer the client / contractor directly to the respective advisor (tax consultant or lawyer) for the assertion of any claims.
  6. The disclosure or presentation of written elaborations or results of fomacon to third parties requires the prior consent of fomacon and is made solely in the interest and on behalf of the client. The third party is thereby not included in the protective scope of the contract between the client and fomacon. This also applies if the third party bears or assumes all or part of the remuneration for fomacon’s activities for the client.

3. Cooperation Obligations of the Client

  1. The client provides fomacon with the information and documents required for the execution of the order completely and correctly in terms of content.
  2. If, after being requested by fomacon, the client fails to perform or incompletely performs the cooperation actions incumbent upon him, fomacon is entitled, but not obliged, to terminate the concluded contract without notice after prior written announcement. In this case, fomacon can either invoice the client for the services actually rendered up to the time of termination or, alternatively, the agreed or projected total remuneration less expenses saved due to the premature termination of the contract.
  3. The client issues fomacon a declaration of completeness, confirming that the information and documents provided by him are complete and correct and that there are no indications or known factors that could call their completeness and correctness into question.

4. Remuneration

  1. The services of fomacon are – unless otherwise agreed in writing in individual cases – calculated and remunerated according to the daily rates / hourly rates applicable at fomacon, plus expenses, incidental costs, daily allowances, etc.
  2. fomacon is entitled to invoice appropriate advance payments for the services expected to be provided or appropriate installment payments for services already provided. The consultation begins after settlement of the first advance invoice.
  3. If requested advance payments, installment payments or other invoices from fomacon are not settled or not settled in full, fomacon is entitled to suspend further activities until the outstanding claim has been settled in full. In addition, fomacon may, after prior written reminder with threat of termination, terminate the concluded contract without notice. In this case, fomacon can either invoice the client for the services actually rendered up to the time of termination or, alternatively, the agreed or projected total remuneration less expenses saved due to the premature termination of the contract.
  4. Time and compensation estimates by fomacon regarding the execution of an order represent a non-binding estimate, as the required time expenditure may depend on factors that cannot be influenced by fomacon.
  5. If the excess of the estimated time or compensation volume is due to circumstances for which the client is responsible (e.g., insufficient cooperation by the client), the resulting additional expenditure is to be compensated according to fomacon’s currently valid daily rates. The same applies to excesses of up to 30% if they are based on other causes.
  6. If the actual processing time exceeds the estimated working time by more than 30%, the client has the option, after being informed by BGC, to either terminate the order and compensate for the services provided up to that point at the agreed conditions, or to continue the order and pay for the exceeded working time additionally on a daily rate basis.

5. Payment Terms

  1. The compensation agreed with fomacon is a net price, which is to be paid plus the applicable statutory value-added tax.
  2. fomacon’s invoices are due upon receipt by the customer without deductions. Advance invoices, down payments, and deposits are to be transferred to the account specified by fomacon no later than the 5th calendar day after the invoice date. Final invoices are to be transferred to the account specified by fomacon no later than the 15th calendar day after the due date.
  3. It is agreed that fomacon is authorized to collect the compensation due to it by direct debit during the validity period of the concluded contract. In this regard, fomacon will provide the customer with a SEPA direct debit authorization, which must be signed and returned.
  4. If the client is a consumer, they will be in default of payment upon reminder from fomacon, but no later than 30 days after receipt of the invoice. In this case, default interest is to be paid at the statutory rate.
  5. If the client is not a consumer, they will be in default by exceeding the payment deadline; a reminder is not required for this. From the onset of default, the default interest rate is 9% above the current base rate, but at least 10% of the invoice amount. In case the statutory interest rate is below this minimum rate, the client is entitled to prove the occurrence of a lower interest damage.
  6. The client may only offset with undisputed or legally established counterclaims; otherwise, offsetting is excluded. If the customer is not a consumer, they are only entitled to exercise a right of retention if their counterclaims are legally established or undisputed.

6. Liability

  1. Verbal or telephone information, statements, consultations, or recommendations are provided to the best of knowledge and belief. However, they are only binding if confirmed in writing.
  2. Liability or guarantee for the success of measures recommended by fomacon is excluded. This also applies if fomacon accompanies the implementation of agreed or recommended plans or measures.
  3. fomacon is liable – if the client is not a consumer – only in cases of intent or gross negligence. The amount of liability is limited to the typically foreseeable damage, up to a maximum of 50,000 EUR. Claims relating to injury to life, body, or health or the violation of cardinal obligations are not subject to any limitation of liability.
  4. fomacon’s liability is void if the damage incurred is also attributable to incorrect or incomplete information or documents provided by the client. The same applies if liability-establishing circumstances were not reported in writing to fomacon by the client within 14 calendar days after becoming aware of them.

Final Provisions

  1. Changes or additions to the order or these General Terms and Conditions require – with the exception of order extensions – compliance with the written form to be effective. A tacit amendment of the order or the General Terms and Conditions is excluded. The written form for contract extensions is preserved if a verbally agreed extension is confirmed in text and the client does not immediately object to this confirmation.
  2. Should a provision of the order or these contractual terms be or become legally ineffective, this does not affect the legal effectiveness of the remaining provisions of the order and these contractual terms. In this case, a legally effective provision is to be agreed between the contracting parties that comes closest to the meaning and purpose as well as the economic objective of the ineffective clause. The same procedure shall be followed if the order or these contractual terms should contain an irregular gap that needs to be filled by supplementary contract interpretation.
  3. The place of performance for all services is Düsseldorf. The exclusive place of jurisdiction for all disputes arising from the order (including those in document and bill of exchange proceedings and in summary proceedings) is Düsseldorf, insofar as the customer is a merchant, a special fund under public law, or a legal entity under public law. If the customer is not a merchant, Düsseldorf is also agreed as the place of jurisdiction if the customer does not have a place of jurisdiction in Germany at the time the action is filed, or if their usual place of residence and/or domicile is outside Germany or has been moved there, or if their domicile or usual place of residence is unknown.

As of: 25.04.2019

fomacon Management GmbH
Mörsenbroicherweg 191 in 40470 Düsseldorf
Managing Director Jan Schmied
District Court Düsseldorf HRB 80174

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