General Terms and Conditions of Business

Last updated: August 2021                                                       

I. Scope

(1) The following General Terms and Conditions of Contract apply to the provision of Services by consus.health GmbH, consus infratech GmbH or consus mtech GmbH (hereinafter “consus”). They apply to merchants (Sec. 14 German Civil Code – BGB), legal entities under public law or special funds under public law.

(2) Other contractual terms are not a component of the Contract. This also applies to cases where consus has not expressly objected to them. Neither do they apply if consus refers to documents from the Customer that contain the Customer’s terms and conditions or refer to the Customer’s terms and conditions.

(3) These General Terms and Conditions of Contract apply to all current and future contracts for Services concluded between consus and the Customer and the Customer’s successor companies, without the need to refer to the General Terms and Conditions of Contract again.

II. Object of the Contract, provision of services, use or implementation of the results of the services provided by consus

(1) consus provides Services to support the Customer, specifically Services in connection with the management, optimisation of the earnings situation of clinics, consultancies, training, analyses as well as customised modifications (hereinafter “Services”). The type, place, time and scope of the Services are determined in the respective Contract with the Customer (hereinafter “Work Order”). In the event of any deviations between the contents of the Work Order and the General Terms and Conditions of Contract, the provisions set out in the Work Order apply.

(2) The Customer has no claim to the provision of services by specific consus employees. consus may, at their own discretion, commission third parties to provide the service in whole or part.

(3) The Customer’s use or implementation of the results of the services provided by consus is not the object of the Contract.

III. Customer’s obligations to cooperate and negative obligations

The Customer nominates a qualified contact person for consus who can make binding decisions on behalf of the Customer during the completion of the Work Order. They are responsible for all management decisions relating to consus Services, for implementing the results of consus Services and for deciding the extent to which consus Services are suitable for the Customer’s purposes.

(2) The Customer is obliged to provide consus with all information, resources, proofs and documents required for providing the service, including access to systems, premises and persons (hereinafter “Customer Information”) in full, properly, in good time and free of charge. This also applies to Customer information that initially becomes known while consus is performing their activities.

(3) The Customer is responsible for the accuracy and completeness of the Customer Information provided to consus. Unless expressly agreed otherwise, consus is not obliged to verify the accuracy and completeness of the Customer Information. On request, the Customer agrees to provide written confirmation of the correctness and completeness of the Customer Information they have provided. The Customer warrants that the Customer Information they provide does not conflict with copyrights and/or other third-party rights and indemnifies consus against third-party claims for the infringement of the aforementioned rights.

(4) The Customer is responsible for ensuring that their employees comply with the duties incumbent upon them vis-à-vis consus.

(5) The Customer undertakes to refrain from doing anything that could jeopardise the independence of consus employees. This applies in particular to offers to employ the employee and offers to take on assignments for the employee’s own account.

IV. Fees

The fees paid to consus are exclusive of taxes, which means that the Customer is liable to pay the additional value added tax at the statutory rate. consus is entitled to demand reasonable advances on their fees and the reimbursement of expenses and to make the delivery of the results of their work conditional upon full satisfaction of their claims.

consus is entitled to additional fees insofar as the Customer entrusts consus with the performance of additional tasks not stipulated in the original Work Order. The daily or hourly rate agreed in the Work Order is decisive for determining the amount of the additional fee. If no daily or hourly rate is specified in the Work Order based on the fee model, €1,800.00 per person-day or €225.00 per hour – in each case plus VAT – will be charged.

(3) Insofar as consus is prevented from providing the service in a proper manner due to circumstances attributable to the Customer’s sphere of influence, consus is entitled to appropriate compensation. An obstacle to the provision of services by consus exists in particular if an agreed day of on-site presence needs to be cancelled or postponed due to circumstances originating from the Customer’s sphere of influence – e.g. due to computer problems at the Customer’s premises or because information, documents, and files agreed for provision that consus has requested from the Customer are not made available for the on-site visit – and consus learns of this less than 5 working days prior to the date of the visit.

The daily rate agreed in the Work Order is decisive for determining the amount of compensation. If no daily rate is specified in the Work Order based on the fee model, €1,800.00 per person-day plus VAT will be charged. If an agreed on-site visit has to be cancelled or postponed due to circumstances arising from the Customer’s sphere of influence, costs that can no longer be averted for trips and overnight stays already booked are also to be reimbursed. Both Parties to the Contract are entitled to establish a higher or lower claim for compensation or damages in each case.

(4) If the Customer delays in accepting the Services offered by consus, or if they fail to cooperate in accordance with Section III. (1) & (2) or otherwise, consus is entitled to terminate the Contract without notice after setting a reasonable deadline and issuing a warning that the Work Order will be terminated. This does not affect the right of consus to claim compensation for additional costs they have incurred or damages they have suffered as a result of the delay or the Customer’s failure to cooperate, even if consus does not exercise their right to terminate. The loss is determined with regard to the lost fee in accordance with Sec. X.3 above.

V. Payment Terms

(1) Payments to be made to consus are due immediately and without deduction upon receipt of the invoice and are to be transferred to the account specified on the invoice within 10 calendar days of receipt of the invoice at the latest. The date on which payment is received in the account specified by consus is decisive for the punctuality of the payment.

(2) The Customer will be in arrears with payment without further notice – even without a reminder – at the end of the 10th day following receipt of the invoice.

(3) During the period of default, the claim by consus is subject to interest in accordance with the statutory provisions at a rate of 9 percentage points above the respective base interest rate. consus can charge higher interest if they can prove a higher level of damage caused by the delay. The assertion of further claims is not excluded. In accordance with the statutory provisions, consus is also entitled to payment of a lump sum of €40.00. This is to be offset against any claims owed, insofar as the claim is based on the costs of legal action.

VI. Customer usage rights

(1) With the exception of Customer information, all information, consulting services, recommendations or other contents of reports, presentations or communications provided by consus to the Customer in fulfilment of the Work Order (hereinafter “Work Results”) are intended solely for the Customer’s internal use and in accordance with the purpose of the Services.

(2) The Customer is not entitled to disclose work results either in whole, part or in summary to third parties (including companies affiliated with the Customer) or to make reference to consus in connection with the Services. This does not apply

to the Customer’s lawyers if they examine the work results, subject to this prohibition of disclosure, solely for the purpose of advising the Customer in connection with the Services,
insofar as the Customer is obliged to disclose the work results on the basis of a law (the Customer must inform consus of this – insofar as this is legally permissible),
to other persons or companies (including companies affiliated with the Customer) if consus has given their prior written consent, if they have countersigned the information agreement provided by consus and if they only use the work results within the scope of the consent given.
Even if the Customer is entitled to disclose the work results in whole or in part, they are not permitted to make changes or modifications to them or edit them.

(3) Insofar as consus is required to present the results of their work in writing, only the written presentation is authoritative in this respect.

Draft versions of work results are non-binding. They only serve for the internal purposes of consus and/or coordination with the Customer and consequently represent merely a preliminary stage in the work results.

VII. Indemnity Agreement

The Customer is obliged to indemnify consus against all claims by third parties (including those by companies associated with the Customer and claims for the reimbursement of procedural and legal costs) as well as any resulting obligations, damages, costs and expenses incurred by consus (in particular reasonable legal costs) which result from the fact that a third party has used a work result or because a third party has relied on a work result and the Customer has directly or indirectly disclosed the work result or this has taken place at the Customer’s instigation. There is no such obligation if and insofar as consus has agreed in writing that the third party may rely on the work result.

VIII. Warranty

(1) In the event of eventual defects, the Customer is initially entitled to subsequent performance by consus. The Customer is obliged to assert the claim for supplementary performance in writing to consus immediately after they become aware of the defect. In the event of unsuccessful, impossible or unreasonable supplementary performance by consus or their refusal to perform supplementary performance, the Customer can demand a reduction in payment or withdraw from the Contract in accordance with the statutory regulations. Section IX applies to any further claims for damages.

(2) consus can correct at any time obvious inaccuracies, such as typing errors, calculation errors and formal defects contained in a work result – also towards third parties. Inaccuracies capable of calling into question the results contained in a work result entitle consus to withdraw the work result, also towards third parties. Insofar as it is possible and reasonable, consus will give the Customer the opportunity to comment in advance in the aforementioned cases.

IX. Liability

(1) consus is liable without limitation for damages arising from loss of life, limb or health, for miscellaneous damages based on an intentional or grossly negligent breach of duty attributable to consus, as well as for claims under the German Product Liability Act (ProdHaftG), insofar as liability is mandatory thereunder.

(2) In all other cases, consus is liable as follows:

In the case of slight negligence, consus is only liable – with the exception of loss of life, limb or health – in the event of a breach of a material contractual duty. Material contractual duties are duties that are essential to the Contract, the fulfilment of which makes the Contract possible in the first place, the breach of which jeopardises the achievement of the purpose of the Contract and the observance of which the Customer regularly relies on. This liability is limited to the damage foreseeable at the time the Contract was concluded and that is typical for the Contract.

(3) Liability for damage to property and financial losses based on a negligent breach of a contractual duty is limited to €1,000,000.00 per claim. A single claim of damage is also given with regard to a uniform claim originating from several breaches of duty. The individual claim includes all consequences of a breach of duty without regard to when the losses materialise. In this context, multiple acts or omissions based on the same or similar source of error are deemed to be a uniform breach of duty if the matters concerned are legally or economically related to one another.

(4) A higher liability sum than the one stated above under Sec. 4 can be agreed upon at the request and expense of the Customer, provided that a corresponding increase in the insurance cover for consus is possible with their liability insurer. However, an increase in the liability sum only applies if this has been agreed in writing between the Parties to the Contract.

(5) If the Customer and/or other third parties who can invoke the Work Order in this respect assert justified claims against consus that are subject to the aforementioned limitation in liability, the maximum liability amount will be due to all – including future – claimants together only once, in accordance with Sec. 428 German Civil Code (BGB). consus can therefore make payments to the Customer with debt-discharging effect towards all creditors. If the aggregate of all claims (including future claims) to which the provisions of this section apply exceeds the maximum liability amount, the allocation of this maximum liability amount is incumbent on the Customer and all other claimants.

(6) Insofar as claims for damages against consus are excluded or limited, this also applies to the liability of the legal representatives, employees and vicarious agents of consus.

(7) Claims for damages by the Customer are excluded if they are not asserted within a preclusion period of six months after the claimant becomes aware of the damage and of the event giving rise to the claim. The claim will lapse if no action is brought within a period of three months from the written rejection of the replacement performance, provided that the Customer has been made aware of these consequences. This does not apply to claims for damages arising from loss of life, limb or health, or in the case of intent or gross negligence on the part of consus. The right to assert the defence of limitation remains unaffected by this.

(8) Claims for damages under Sec. 1 become time-barred in accordance with the statutory provisions. Claims for damages under Sec. 2 become time-barred one year after commencement of the statutory limitation period.

X. Intellectual Property

Notwithstanding the delivery of the work result, the intellectual property rights to the know-how, namely data, software, samples, aids, tools, analysis models and systems as well as other methods and expertise owned by consus (including improvements developed or knowledge acquired in the course of the provision of work and services) and to all work documents compiled in the course of the Services (with the exception of the Customer information reproduced therein) remain with consus.

XI. Confidentiality

(1) The Parties to the Contract undertake mutually to only disclose the contents of the Work Order and other (confidential) documents and information provided within the scope of the Work Order to third parties or to make them accessible in any other way with the consent of the respective other Party to the Contract. Employees and staff members are to be bound to secrecy insofar as they are not already required to comply with this obligation by virtue of their employment contract.

(2) The confidentiality obligation also continues to apply beyond the termination of the contractual relationship.

(3) Subject to overriding legal duties of confidentiality, however, the parties to the Contract are permitted to disclose such information insofar

• as the disclosure is without disadvantage to the other Party to the Contract,
• the information is or becomes publicly known without breach of the agreement existing between the parties,
• the recipient has received the information from a third party following completion of the Work Order, who, to the knowledge of the recipient, is under no non-disclosure obligation towards the disclosing Party with respect to the information,
• the information was already known to the recipient at the time of disclosure or was independently developed thereafter,
• the information is disclosed to the extent necessary to enforce the rights of the recipient under the Work Order, and
• the information is required to be disclosed by law.

(4) The Parties to the Contract are permitted to use electronic media to exchange and transfer information. Such use does not per se constitute a breach of the confidentiality obligation agreed between the Parties. The Parties to the Contract are aware that the electronic transfer of information (in particular by email) is subject to risks.

XII. Privacy

(1) In the course of providing services, consus and third parties acting on behalf of consus are entitled to process Customer information that can be attributed to specific individuals (hereinafter “personal data”). consus processes personal data exclusively in accordance with applicable law, in particular in compliance with the German Federal Data Protection Act (BDSG) and the respective state data protection laws (LDSG). consus obliges all contractors who process personal data on behalf of consus to comply with these regulations as well.

(2) The Customer warrants that they are authorised to provide personal data to consus in connection with providing the service and that the personal data provided to consus has been processed in accordance with applicable law.

(3) The Customer indemnifies consus against all claims asserted by third parties due to breaches of data protection regulations by the Customer.

XIII. Term and termination

(1) The agreements in the Work Order apply to the Services provided under the Work Order (including those Services provided prior to the Work Order being signed) irrespective of the time of performance.

(2) The deadlines and modalities for terminating the Contract are governed by the agreements in the Work Order.

(3) The Customer is obliged to remunerate consus for Services completed or already commenced but not yet completed, as well as to reimburse consus for expenses and outlays incurred up to the date when the Work Order is completed.

XIV. No Assignment

The assignment of rights, obligations or claims arising from the Work Order is not permitted.

XV. No Offsetting

Offsetting against claims that are not reciprocal is excluded unless they are undisputed or have been legally established. The same applies to the Customer’s right of retention with regard to the fees to be paid.

XVI. Names, logos and trademarks of the Parties

Neither Party is entitled to use or refer to the other Party’s name, logo or trademark without the other Party’s prior consent.

XVIII. Written Form

Amendments or additions to the Work Order require the written form to be effective. This also applies to the suspension, change or amendment of this written requirement clause. For the Work Order to be effective, it suffices when each of the Parties to the Contract signs a separate copy of the same document.

XVIII. Applicable law and jurisdiction

(1) The legal relations between the Parties to the Contract arising from or in connection with the Work Order are governed exclusively by the law of the Federal Republic of Germany to the exclusion of the legal regulations referring to other legal systems.

(2) The registered office of consus is decisive for determining the place of jurisdiction for all legal disputes arising from or in connection with the Work Order. consus is, however, also entitled to institute legal proceedings against the Customer at the Customer’s registered office or domicile.