General Terms and Conditions Consultancy Services CMeXs – September 2024
CMeXs – Mario Claeys, Peter-Stahs-Strasse 16, 41363 Jüchen (referred to as ‘the Consultant’)
1. General Terms and Conditions / Scope
1.1 All legal transactions between the Client and the Consultant shall be subject to these General Terms and
Conditions exclusively. The version valid at the time the Contract is concluded shall be applicable.
1.2 These General Terms and Conditions shall also apply to any future contractual relationships even if these
General Terms and Conditions are not expressly referred to in collateral contracts.
1.3 Any conflicting General Terms and Conditions on the part of the Client shall be invalid unless they have been
explicitly accepted in writing by the Consultant.
1.4 If any provision of these General Terms and Conditions is or becomes invalid, the other provisions and any
contracts concluded pursuant to these provisions shall not be affected thereby. The invalid provision shall be
replaced by a provision which best corresponds to the intention and economic purpose of the invalid provision.
2. Scope of Consulting Assignments / Representation
2.1 The activities of the Consultant are, in the first instance, consulting services, i.e. providing expertise about
clearing and exchange trading related topics, operational processes, regulatory obligations, technical solutions.
The assessment of entrepreneurial suitability and viability and the managerial decision making with respect to
implementation of the results of the consultancy services is exclusively with the client.
2.2 The scope of each particular consulting assignment shall be individually agreed by contract.
2.3 The Consultant shall be entitled to subcontract, in whole or in part, the services for which the Consultant is
responsible to third parties. Payment of said third parties shall be concluded exclusively by the Consultant. No
contractual relationship of any kind shall exist between the Client and said third party.
2.4 During the validity of this Contract and for a period of three years after termination thereof, the Client shall
agree not to enter into any kind of business transactions with persons or organisations Consultant employs to
perform the Consultant’s contractual duties. In particular, the Client shall not employ said persons or organisations
to render consulting services the same or similar to those offered by the Consultant.
3. Client’s Obligation to Provide Information / Declaration of Completeness
3.1 The Client shall ensure that during the performance of the consulting assignment, organisational conditions in
the Client’s place of business allow the consulting process to proceed in a timely and undisturbed manner.
3.2 The Client shall also inform the Consultant in detail about previously conducted and/or currently active
consulting projects, including those in other areas of competency.
3.3 The Client shall, in a timely manner and without special request on the part of the Consultant, provide the
Consultant with all information, either electronic (data) files and/or documents necessary to fulfil and perform the
consulting assignment and shall inform the Consultant of all activities and conditions pertinent to the performance
of the consulting assignment. This includes all documents, activities and conditions that become known or available
during the performance of the consulting assignment.
3.4 The Client shall ensure that all relevant employees as well as any employee representation (works council)
provided by law, if established, are informed of the Consultant’s activities prior to the commencement of the
assignment
4. Maintenance of Independence
4.1 The contracting parties shall be committed to mutual loyalty
4.2 The Consultant shall be independent contractor and not the employee of the Client.
4.3 In such capacity, the Consultant shall bear exclusive responsibility for the payment of Social Security
contributions as a self-employed person and for the discharge of any income tax, VAT liability or other taxation
arising out of remuneration for the work performed by the Consultant under this agreement.
4.4 The contracting parties shall be obligated to take all necessary measures to ensure that the independence of all
persons working for the Consultant and/or of any third parties employed by the Consultant is not jeopardized. This
applies particularly to any employment offers made by the Client or the acceptance of assignments on their own
account.
5. Reporting / Obligation to Report
5.1 The Consultant shall be obligated to report to the Client on the progress of services performed by (persons
working for) the Consultant and/or any third parties employed by the Consultant.
5.2 The Consultant shall deliver the final report in a timely manner, i.e. depending on the type of assignment, two to
four weeks after completion of the assignment.
5.3 The Consultant shall not be bound by directives while performing the agreed service and shall be free to act at
the Consultant’s discretion and under the Consultant’s own responsibility. The Consultant shall not be required to
work in a particular place or to keep particular working hours.
6. Protection of Intellectual Property
6.1 The Consultant shall retain all copyrights to any work done by the Consultant and/or by persons working for the
Consultant and/or by third parties employed by the Consultant (including but not limited to tenders, reports,
analyses, expert opinions, organization charts, programs, performance descriptions, drafts, calculations, drawings,
data media, etc.). During the contract period and after termination thereof, the Client may use these materials
exclusively for the purposes described under the Contract. Therefore, the Client shall not be entitled to copy or
distribute these materials without the explicit consent of the Consultant.
6.2 Any violation of this provision by the Client shall entitle the Consultant to prematurely terminate the Contract
and to enforce other legal claims, in particular for restraint and/or damages.
7. Warranties
7.1 The Consultant shall be entitled and obligated, regardless of fault, to correct any errors and/or inaccuracies in
the Consultant’s work which have become known subsequently. The Consultant shall immediately inform the Client
thereof.
7.2 This right of the Client expires six months after completion of the respective service.
8. Liability / Damages
8.1 The Consultant shall be liable to the Client for damages – with the exception of personal injury – only to the
extent that these are the result of serious fault (intention or gross negligence). Correspondingly, this also applies to
damages resulting from third parties employed by the Consultant. In case of gross (except for extremely gross)
negligence, the Consultant is only liable up to a sum amounting to the 2-fold of the fees received for the respective
contract (excluding any expenses compensation), at the maximum up to a sum of EUR 25.000.
8.2 Any claim for damages on the part of the Client may only be enforced by law within six months after those
entitled to assert a claim have gained knowledge of the damage and the liable party, but not later than three years
after the incident upon which the claim is based
8.3 The Client shall furnish evidence of the Consultant’s fault.
8.4 If the Consultant performs the required services with the help of third parties, any warranty claims and claims
for damages which arise against the third party shall be passed on to the Client. In this case, the Client shall
primarily refer to the third party.
9. Confidentiality / Data Protection
9.1 Both the Client and the Consultant shall be obligated to maintain complete confidentiality concerning all
business matters made known to the Client and/or Consultant in the course of services performed, especially trade
and company secrets and any other information concerning type and/or scope of business and/or practical
activities of the Client.
9.2 Furthermore, the Consultant shall be obligated to maintain complete confidentiality towards third parties
concerning the content of the work completed, as well as any information and conditions that contributed to the
completion of the work, particularly concerning data on the Client’s clients.
9.3 The Consultant shall not be obligated to maintain confidentiality towards any person working for the Consultant
or representatives of the Consultant. The Consultant is required to obligate such persons to maintain complete
confidentiality and shall be liable for any violation of confidentiality on their part in the same way as if the Consultant
had breached confidentiality.
9.4 The obligation to maintain confidentiality shall persist indefinitely even after termination of this Contract with the
exception of any duty to give evidence.
9.5 The Consultant shall be entitled to use any personal data entrusted to the Consultant for the purposes of the
services performed. The Consultant shall guarantee the Client that all necessary measures will be taken, especially
those regarding data protection laws, e.g., that declarations of consent are obtained from the persons involved.
9.6 In the context of Supervisory Board activities, CMeXs has an information duty to the regulator BaFin to provide
a quarterly overview with client details, turnover and a global description of the activities carried out for the client.
No specific details are provided. The client agrees to this and can obtain an overview of the data provided upon request.
10. Remuneration
10.1 After delivery of the services agreed upon, the Consultant shall receive remuneration agreed upon in advance
between the Consultant and the Client. The Consultant shall be entitled to demand payment on account by the
progress of the work in monthly invoices covering the number of hours that have been delivered in the previous
month.
10.2 Any cash expenditures, expenses, travel expenses, etc. shall be reimbursed to the Consultant by the Client
separately, only when approved upfront by the Client and upon submission of the appropriate receipts.
10.3 For any work at weekends, on public holidays or between 10 p.m. and 6 a.m. expressly required by the client
a surcharge of 35% to the agreed fee will be charged.
10.4 In the event that the work agreed upon is not completed due to reasons on the part of the Client, or due to a
premature termination of contract by the Consultant for cause, the Consultant shall be entitled to claim payment in
full of the remuneration agreed upon in advance, less expenses not incurred. In the event that an hourly fee had
been agreed upon, the Client shall pay for 35 % of the number of undelivered hours, that have been estimated at
the start of the assignment. All delivered hours till the time of termination will be subject to remuneration under 10.1
10.5 In the event that intermediate invoices are not paid, the Consultant shall be released from the Consultant’s
commitment to provide further services. This shall not apply to any further claims resulting from default of payment.
11. Electronic Invoicing
11.1 The Consultant shall be entitled to transmit invoices electronically. The Client agrees explicitly to accept
invoices transmitted electronically by the Consultant.
12. Communication via electronic data transfer
12.1 Communication between Client and Consultant is done via Internet, e-mail and telephone. This includes
Microsoft Teams and/or any other by Client chosen application.
12.2 Costs for applications used on explicit request from Client will be borne by Client
12.3 When transmitting data electronically transmission errors may occur. The Consultant is not liable for any
damages caused by such errors. Electronic transmission (including Internet/e-mail) takes place at the exclusive risk
of the client. The client is aware of the fact that secrecy is not guaranteed when using the Internet. Furthermore,
changes of or additions to documents, transmitted by the Consultant, are only permitted upon the Consultant’s
express consent.
12.4 Receipt and forwarding of information to the Consultant is not always guaranteed when using electronic
means of communication. Specific engagements and other important information are only regarded as delivered to
the Consultant, if received in writing as well, unless in an individual case the receipt is expressly confirmed.
Automatic confirmations of transfer and read messages are not regarded as such express confirmations.
12.5 The Consultant may only transmit reports, expert opinions and other written comments on the results of his
work to third parties upon the client’s prior consent, unless there is a legal obligation to do so.
13. Duration of the Agreement
13.1 This Contract terminates with the completion of the project.
13.2 Apart from this, this Contract may be terminated for good cause by either party at any time without notice.
Grounds for premature termination include the following:
– one party breaches major provisions of the Contract
– one party is in delay with the payments after the beginning of insolvency proceedings
– legitimate concerns exist regarding the Client’s credit standing, even though insolvency proceedings have
not been opened, the Client fails to make an advance payment or to furnish suitable security at the
Consultant’s request and the Consultant didn’t know about the Client’s bad financial situation when the
contract was concluded.
14. Force Majeure
Each party shall be excused from performance under the Agreement to the extent that such party is prevented from
performing, in whole or in part, by delays caused by an act of God, war, civil disturbance, labor dispute, or other
cause beyond its reasonable control. The non-performing party shall promptly give notice of its non-performance to
the other party. The non-performing party shall make all commercially reasonable efforts to remove such cause of
non-performance. All other obligations not affected by such cause of nonperformance shall be in full force and
effect during the period of time that the affected obligation is suspended during the continuance of such cause of
non-performance.
15. Final Provisions
15.1 The contracting parties declare that all information contained herein is accurate and made in good conscience.
They shall be mutually obligated to immediately inform the other party of any changes.
15.2 Modifications of and amendments to the Agreement or these General Terms and Conditions shall be made in
writing. This shall also apply to a waiver of this requirement in written form.
15.3 The Agreement is governed by the law of the Federal Republic of Germany. The place of jurisdiction is
Düsseldorf.
