GTC

A. General Conditions
The general conditions in this section A apply to all services.

1. Subject Matter of the Contract
1.1 Diffferent GmbH – hereinafter referred to as the "Contractor" – provides its services to its Customers exclusively on the basis of these General Terms and Conditions.

1.2 Any differing General Terms and Conditions of the Customer shall not apply, even if the Contractor does not expressly object to them. Any deviations from these General Terms and Conditions shall only be effective if confirmed by the Contractor in writing.

1.3 The Contractor shall provide the services listed in the Contractor's respective offer to the Customer. The details regarding the type, scope, and quality of the services are conclusively set forth in the offer and its annexes, the offer presentations preceding and forming the basis of the actual offer, as well as any supplementary documents referenced therein and communicated and provided to the Customer — collectively referred to as the “offer”.

2. Rights of Use for Work Results / Licensing Provisions for Third-Party Products
2.1 With respect to any work results created by the Contractor for the Customer and any other documents provided, such as training materials and concepts, the Contractor grants the Customer a non-exclusive right of use, transferable and sublicensable only to companies affiliated with the Customer pursuant to Sections 15 et seq. of the German Stock Corporation Act (AktG), without territorial or time limitation, for the intended use.

2.2 For any third-party products used and deployed by the Contractor, such as third-party software, licensed content including, for example, images, graphics and audio files, licensed data material, as well as the related documentation, the granting of rights and any restrictions thereof, including the type of license, shall be governed exclusively by the respective end-user license terms of such third-party providers. Under no circumstances shall the Contractor be obliged to grant the Customer any rights exceeding those granted to the Contractor itself for onward transfer to the Customer.

2.3 The Customer shall be obligated to ensure, by means of appropriate technical and organizational measures, that the third-party products are used in accordance with their intended purpose and in compliance with the applicable license terms.

3. Remuneration / Terms of payment
3.1 The Contractor’s services shall be remunerated, in the case of services including consulting services and work services, either on a time and materials basis at the remuneration rates specified in the offer or at a fixed price stated in the offer.

3.2 If remuneration is based on a time and material basis, the Contractor shall, at the end of each respective month, prepare an invoice for the services already rendered and invoice the Customer for such services based on the actual time incurred in accordance with the remuneration rates specified in the offer.

3.3 If remuneration is based on a fixed price, the Contractor shall invoice the fixed price following acceptance or, where partial payments have been agreed, on the dates specified in the offer.

3.4 Remuneration for additional services shall be based on time and materials at the remuneration rates agreed in the offer.

3.5 Travel time required for the performance of the services agreed in the offer at the Customer’s premises or at another location agreed in advance with the Customer shall be recorded as working time and invoiced at the regular hourly or daily rates specified in the offer. Billing shall be based on the activity records maintained by the Contractor.

3.6 All prices and remuneration amounts are stated net and are subject to the legally applicable value-added tax in addition.

3.7 The remuneration shall become due immediately upon invoicing and shall be payable without deduction. A payment period of fourteen (14) calendar days from the date of invoicing shall apply.

3.8 Until full payment has been made, the services delivered by the Contractor shall remain the property of the Contractor.

3.9 The Contractor shall be entitled to reimbursement of its expenses, including, but not limited to, travel and accommodation costs as well as per diem allowances and other expenses incurred in connection with its activities for the Customer. Such costs shall be invoiced by the Contractor on the basis of copies of the original receipts or at the maximum rates recognized for tax purposes.

3.10 Set-off shall only be permissible with undisputed claims or claims that have been finally determined by a court of law.

3.11 A right of retention may only be asserted on the basis of counterclaims arising from the respective contractual relationship.

4. Customer Cooperation Obligations and Contributions
4.1 The Customer shall provide, free of charge, all cooperation services and contributions that may reasonably be expected from the Customer for the performance of the services by the Contractor and that can reasonably be required of the Customer. The Customer shall inform the Contractor without undue delay if the Customer becomes aware that it is unable to fulfill a cooperation or contribution obligation, or is unable to fulfill it properly or in a timely manner. The essential cooperation services and contributions of the Customer are defined in the offer.

4.2 Failure by the Customer to provide cooperation services, or the improper or delayed provision thereof, shall release the Contractor from the obligation to perform the affected services and, in particular, from compliance with any affected deadlines. Nevertheless, if the Customer fails to provide cooperation services, or provides them improperly or with delay, the Contractor shall endeavor to perform the services in accordance with the contract. Any additional effort incurred by the Contractor due to the Customer’s failure to provide cooperation services, or the improper or delayed provision thereof, shall be remunerated in accordance with the remuneration rates specified in the offer.

5. Change Requests / Project Termination / Conditions for Changes to Project Duration / Conditions for Workshop Cancellations
5.1 If, after conclusion of the contract, the Customer requests a change to the agreed scope of services (a “Change Request”), the Contractor shall review such request. If the requested change can be implemented without affecting the agreed schedule and/or the agreed remuneration, the Contractor shall comply with the request. Otherwise, the Contractor shall submit a proposal to the Customer for the implementation of the requested change. This proposal shall detail the estimated additional costs, additional workload, and any schedule adjustments. If the Customer does not provide written acceptance of the proposal within eight (8) business days of receipt, the change request shall be deemed withdrawn and the originally agreed scope of services shall remain binding.

5.2 Should the Customer terminate the project prematurely for reasons attributable to the Customer, the following provisions shall apply:
Project termination prior to project commencement: If the project is terminated before the agreed project commencement date, that is, before the Contractor has begun providing any initial contractual services, the Customer shall pay the Contractor liquidated damages in the amount of 10% of the total agreed project fee. This amount serves to compensate for lost profit as well as the reservation of the Contractor’s capacities. Payment shall become due immediately upon declaration of the termination.
Project termination after project commencement: If the project is terminated during the project term, that is, after the project has commenced and before its complete performance or completion, the Customer shall fully compensate the Contractor for all services already incurred and rendered. Remuneration shall be based on the agreed project progress and/or the individual prices for the services rendered. Partial services already rendered and fully paid for shall transfer into the ownership of the Customer upon receipt of payment.

5.3 The project timelines agreed upon in the offer with the Contractor — in particular the start and end dates as well as any milestones — shall be binding upon the Customer. Any subsequent changes to the project timelines requested by the Customer, including postponements of start and end dates, interruptions, extensions and/or reductions (“Changes to Project Duration”), shall require the Contractor’s prior written consent by email. Expenses already incurred by the Contractor that cannot be cancelled, such as travel and accommodation costs, room rentals or other third-party services, shall always be reimbursed to the Contractor in the amount actually incurred.

5.4 The Customer may cancel agreed workshop dates exclusively in writing, that is, by email. Timely cancellation shall be determined by the receipt of the cancellation by the Contractor. In the event of cancellations by the Customer, the following conditions shall apply to the Customer:
In the event of cancellation 5 or fewer calendar days prior to the agreed date, or in the event of non-attendance, cancellation fees in the amount of 50% of the agreed workshop fee shall apply.
Any expenses already incurred by the Contractor that cannot be cancelled, such as travel and accommodation costs, room rentals, or other third-party services, shall — irrespective of the above provisions — always be reimbursed to the Contractor in the actual amount incurred.
For the calculation of deadlines, calendar days shall apply. The day on which the workshop begins shall not be counted.

6. Limitation of Liability
6.1 The Contractor shall be liable in accordance with the statutory provisions for damages and expenses caused intentionally or by gross negligence, as well as in the event of injury to life, body, or health.

6.2 The Contractor shall be liable for damages and expenses caused by slight negligence only insofar as essential contractual obligations have been breached. In such cases, liability shall be limited to the foreseeable damage typical for this type of contract. Essential contractual obligations / cardinal obligations are those obligations whose fulfillment is essential for the proper performance of the contract and upon whose compliance the Customer may regularly rely.

6.3 Liability for consequential damages or other indirect damages, loss of profit, or unrealized savings shall be excluded in cases of slight negligence.

6.4 In the event of data loss, the Contractor shall be liable in cases of slight negligence, subject to and within the scope of Section 6.2, only if the Customer has backed up its data daily in an appropriate manner so that such data can be restored with reasonable effort.

6.5 Claims under the Product Liability Act shall be governed exclusively by the provisions of such Act.

6.6 Payment claims arising from any contractual penalties shall be offset against any claims for damages insofar as they are based on the same damaging event.

6.7 To the extent liability is excluded or limited pursuant to Section 6, such exclusion or limitation shall also apply to the personal liability of the Contractor’s employees, legal representatives, executive bodies, and any vicarious agents engaged by the Contractor.

7. Indemnification for Infringement of Intellectual Property Rights
7.1 Each party shall indemnify and hold the other party harmless, within the limits of liability set forth in Section 6, from and against all claims, actions, liabilities, damages, costs, and expenses, in particular court costs and attorneys’ fees, arising from any claim alleging infringement of patents, copyrights, licenses, trade secrets, trademarks, or other third-party rights, provided that the indemnifying party is at fault in this respect. The indemnifying party shall be informed without undue delay by the other party of the assertion of any such claims. The indemnifying party and/or its insurers shall have the right to monitor or, at their discretion, assume the defense of the indemnified party against any such claims.

7.2 If a claim or action alleging infringement of the rights described in Section 7.1 is brought or, in the Contractor’s reasonable assessment, is likely to be brought, the Contractor may, at its own expense, take measures to avoid the infringement or alleged infringement of such rights through the continued performance of the services. In particular, the Contractor may achieve this by modifying or replacing any service or by obtaining a license permitting the use of the rights that are infringed or alleged to be infringed.

8. Term of Contract / Termination
8.1 The statutory rights of termination of both parties shall remain unaffected, in particular the Customer’s right to terminate at any time in the case of work services pursuant to Section 648 of the German Civil Code (BGB), as well as the right of both parties to terminate for good cause. Good cause shall exist in particular if the financial circumstances of one party have deteriorated compared to the time of conclusion of the contract to such an extent that such party is unable to fulfill its obligations under the contract, or unable to fulfill them in full, in particular if such party ceases payments or performance, or if insolvency proceedings or any other judicial or extrajudicial debt settlement proceedings have been or are initiated against its assets. The party responsible for the grounds for termination shall be obliged to compensate the other party for any damages arising therefrom, within the limits of liability set out in Section 6.

8.2 Any termination must be made in writing.

9. Confidentiality
9.1 The parties undertake to treat as confidential any knowledge and/or documents made accessible to them by the respective other party on the basis of the contract and any other agreements concluded hereunder, irrespective of the form, medium, or data carrier on which they exist (“Confidential Information”), which they obtain in connection with this collaboration concerning matters of a technical, commercial, organizational, or similar nature. During the term of the contract and, following termination of the contract, in accordance with Section 9.4, such Confidential Information shall neither be used for purposes other than this collaboration nor disclosed to third parties.

9.2 Any use of such Confidential Information shall be limited exclusively to its use within the scope of this cooperation. Third parties shall not include affiliated companies of the parties within the meaning of Sections 15 et seq. of the German Stock Corporation Act (AktG), nor subcontractors engaged by the parties, insofar as Confidential Information is disclosed to them in connection with the performance of the contract.

9.3 This confidentiality obligation shall not apply to Confidential Information which the other party can demonstrably prove:

• was or is lawfully received from third parties; or
• was already publicly known at the time of conclusion of the contract or subsequently became publicly known without any breach of the obligations contained in this contract; or
• was independently developed by the party bound by the confidentiality obligation; or
• constitutes techniques, ideas, know-how, or concepts of a third party (“Third-Party Know-How”) lawfully disclosed by such third party to the other party, even if and to the extent that such Third-Party Know-How coincidentally corresponds to Confidential Information within the meaning of this Section 9; or
• must be disclosed pursuant to mandatory statutory provisions or court or governmental orders; or
• must be disclosed to an assignee in the event of an assignment of claims, insofar as necessary to enable such assignee to enforce the claim; or
• is disclosed by a party to third parties subject to professional confidentiality obligations for the purpose of safeguarding that party’s rights arising from this cooperation.

9.4 The provisions of this Section 9 shall remain in effect for both parties for a period of five (5) years following the termination of the project.

10. Data Protection
10.1 The parties shall ensure compliance with the applicable statutory data protection provisions, in particular the obligation of their employees to maintain data confidentiality.

10.2 The Contractor shall ensure proper data processing and compliance with technical and organizational measures for data security in accordance with the standards and technologies used by the Contractor, in particular to ensure the confidentiality and integrity of the data used.

10.3 To the extent that the services of the Contractor constitute data processing within the meaning of Article 28 GDPR, the provisions of the data processing agreement to be concluded between the parties shall apply.

11. Miscellaneous
11.1 The Contractor shall be entitled to provide the services through subcontracting to third parties – so-called subcontractors. The Contractor shall be liable for the performance of subcontractors as for its own actions.

11.2 The Contractor shall be entitled to use and/or display the Customer’s name as well as its logos, trademarks, and other business identifiers within the scope of its own advertising and public presentation – in particular in reference lists, on its website, in presentations, and other promotional materials. This shall apply both during and after termination of the business relationship. Such use shall require the Customer’s prior written consent.

11.3 The laws of the Federal Republic of Germany shall apply. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded. The place of jurisdiction for all claims arising out of and in connection with this business relationship shall be Berlin.

11.4 Should any provision of these General Terms and Conditions or of the respective contractual relationship be or become invalid, the validity of the remaining provisions shall remain unaffected. The parties shall promptly replace the invalid provision with a valid provision that comes closest to the economic purpose of the invalid provision.
B. Special Conditions
The special conditions set out in this Section B shall apply exclusively to work services pursuant to Clauses 12 and 13 and to services, including consulting services, pursuant to Clause 14.

12. Acceptance of Work Services
The acceptance of the services rendered shall be governed by the separate agreements set out in the respective offer.

13. Defects in Work Services
13.1 The Contractor warrants, for a period of twelve (12) months commencing upon acceptance, that the agreed work is free, at the time of acceptance, from defects that nullify or materially impair its suitability for the contractually intended use in accordance with the agreed specifications. The Contractor shall provide no warranty for defects resulting from any use of the work by the Customer other than its intended use. The same shall apply to defects resulting from modifications made by the Customer, without the Contractor’s prior written consent, to parts of the work not intended to be modified by the Customer or third parties, unless the Customer proves that the defect is in no way related to the modifications made. The Contractor shall provide no warranty for incorrect configurations or data provided by the Customer or third parties, nor for defects resulting therefrom.

13.2 In the event of a warranty claim, the Contractor shall initially be entitled, at its own discretion, to remedy the defect or provide a replacement. The Customer shall be entitled to reasonably reduce the remuneration for the affected service or to claim damages or reimbursement of expenses in accordance with Clause 6 if supplementary performance fails twice. However, withdrawal from the project due to the failure of supplementary performance twice shall only be possible if the defect is material and prevents the intended use. A reasonable workaround for the defect, or the Contractor’s indication of such a reasonable workaround, shall be deemed equivalent to remedying the defect, without prejudice to the right to reduce the remuneration.

13.3 Obvious and discovered defects must be reported by the Customer without undue delay. Where possible, the Customer shall describe the occurrence of the defect, including the time and circumstances of its occurrence, specify the nature of the defect, and explain its effects.

13.4 The Contractor warrants that the work created, e.g. strategy papers, concepts, or analyses, complies with the content-related and professional requirements and objectives expressly stipulated in the offer and the service description. No warranty is provided with respect to the economic success, profitability, or actual feasibility of the recommended strategies and measures. Responsibility for assessing the feasibility of the work within the Customer’s specific context, as well as for the successful implementation of the strategy and the measures derived therefrom, shall rest solely with the Customer.

14. Deficient Performance in Services – Including Consulting Services
14.1 If an agreed service or consulting service is not rendered by the Contractor in accordance with the contract, the Customer shall be entitled to require the Contractor to render the service in conformity with the contract within a reasonable period and at no additional cost.

14.2 If the Contractor’s service or consulting service is still not rendered in conformity with the contract after expiry of the second reasonable deadline to be set by the Customer in each case, the Customer shall be entitled to reduce the remuneration to an appropriate extent.