GENERAL TERMS AND CONDITIONS of BRAIN ORCHESTRA Management-Beratung GmbH
§1 General information
BRAIN ORCHESTRA Management-Beratung GmbH operates an online-supported management consultancy service, in which managers and management consultants ("consultants") experienced throughout Germany are placed via an Internet platform under the name of BRAIN ORCHESTRA (www.brainorchestra.com | www.brainorchestra.de, hereinafter referred to as "BC"), who provide management consultancy online or on site, alone or as a crowd, for interested companies and private individuals ("clients") according to their own quality seal and according to publicly accessible reports and evaluations. The contents of the consultation are derived from the online offers or from the individually coordinated offers of BC. Furthermore, BC offers various e-books and e-articles on the subject of management for download ("BRAIN PRODUCTS, BRAIN BOOKS").
Consumers within the meaning of these General Terms and Conditions are natural persons who conclude a legal transaction for a purpose that cannot be attributed to either their commercial or their self-employed professional activity. Entrepreneurs within the meaning of these General Terms and Conditions are natural or legal persons or partnerships with legal capacity who act in the exercise of their commercial or independent professional activity when concluding a legal transaction. Clients within the meaning of these General Terms and Conditions are both consumers and entrepreneurs.
All services of BRAIN ORCHESTRA Management-Beratung GmbH are based on these general terms and conditions. Conflicting or deviating terms and conditions of the customer shall not be recognised unless they have been expressly confirmed in writing. The general terms and conditions of BRAIN ORCHESTRA Management-Beratung GmbH apply both to follow-up orders and to permanent business relationships.
The services of BRAIN ORCHESTRA Management-Beratung GmbH are exclusively services, with the exception of BRAIN BOOKS. BRAIN ORCHESTRA Management-Beratung GmbH does not owe any specific success to the services provided. It is solely within the decision-making and risk area of the client to make further decisions on the basis of the services provided.
§2 Conclusion of contracts for services
(1) Orders placed by clients are only binding for BRAIN ORCHESTRA Management-Beratung GmbH if and insofar as they have been confirmed in text form in accordance with § 126b BGB (German Civil Code). Amendments, supplements and oral collateral agreements of any kind also require text form in accordance with § 126b BGB. In particular, this also includes information and commitments from employees of BRAIN ORCHESTRA Management-Beratung GmbH and subcontractors ("consultants") commissioned by BRAIN ORCHESTRA Management-Beratung GmbH. The text form requirement also applies to the amendment or cancellation of this text form clause.
(2) The client submits a binding offer to BRAIN ORCHESTRA Management-Beratung GmbH to conclude a contract [sending a written order]. BRAIN ORCHESTRA Management-Beratung GmbH will confirm receipt of the order. The confirmation of receipt does not constitute acceptance of the order. A contract is only concluded when an order confirmation is sent by BRAIN ORCHESTRA Management-Beratung GmbH. The confirmation of receipt can be combined with the order confirmation. Without prejudice to his right of withdrawal pursuant to § 3, the contracting authority shall be bound by his offer until the end of the [working day following the day of the offer].
(3) If the client orders the services electronically, the order text will be stored by BRAIN ORCHESTRA Management-Beratung GmbH and sent to the client upon request together with the general terms and conditions of BRAIN ORCHESTRA Management-Beratung GmbH by email.
§3 Revocation clause for consumers
right of withdrawal
If the client is a consumer, he has the right to revoke his declaration of intent to conclude the contract within 14 days of conclusion of the contract. As a consumer, you can revoke your contractual declaration within 14 days without giving reasons in writing (eg letter, fax or e-mail). The period begins after receipt of this instruction in text form, but not before conclusion of the contract and also not before fulfilment of our information duties according to Article 246 § 2 in connection with § 1 paragraph 1 and 2 EGBGB as well as our duties according to § 312g paragraph 1 sentence 1 BGB in connection with Article 246 § 3 EGBGB. The timely dispatch of the revocation is sufficient to comply with the revocation period. The revocation is to be addressed to:
BRAIN ORCHESTRA Management Consulting Ltd.
represented by the managing director Mr. Markus Hoischen
Rethelstrasse 8, 22607 Hamburg, Germany
+49 40 228 53 93 90
In the event of an effective revocation, the services received by both parties shall be returned and any benefits derived (e.g. interest) shall be surrendered. If you are unable to return or surrender the goods or services received or their uses (e.g. advantages of use) to us, or if you are unable to return or surrender them in whole or in part, or only in a deteriorated condition, you must pay us compensation for the value of the goods or services in this respect. This can lead to the fact that you must fulfill the contractual payment obligations for the period up to the revocation nevertheless. Obligations to refund payments must be fulfilled within 30 days. The period begins for you with the dispatch of your declaration of revocation, for us with its receipt.
Your right of withdrawal expires prematurely if the contract is completely fulfilled by both parties at your express request before you have exercised your right of withdrawal.
END OF THE REVOCATION INSTRUCTION
A right of revocation does not exist for contracts for the delivery of goods which are not suitable for return due to their nature (e.g. BRAIN BOOKS). Otherwise, the statutory exceptions pursuant to § 312d paragraph 4 BGB shall apply.
(1) BRAIN ORCHESTRA Management-Beratung GmbH will perform its services impartially, neutrally and to the best of its knowledge and belief in accordance with the recognised rules and in compliance with the regulations existing at the time of order confirmation.
(2) BRAIN ORCHESTRA Management-Beratung GmbH makes use of subcontractors ("consultants") for the performance of its services. The contractual service relationship on the basis of these general terms and conditions is nevertheless only established between the client and BRAIN ORCHESTRA Management-Beratung GmbH. In order to perform its services, BRAIN ORCHESTRA Management-Beratung GmbH transfers the data provided by the client to the respective subcontractor with the obligation to use the data only for the purpose of performing the service. BRAIN ORCHESTRA Management-Beratung GmbH has obligated its subcontractors in accordance with their obligations arising from the contractual relationship with the client, in particular with regard to data protection (see § 13).
(3) The scope of the service to be provided by BRAIN ORCHESTRA Management-Beratung GmbH is determined by the client when the order is placed in accordance with the offers of BRAIN ORCHESTRA Management-Beratung GmbH. Partial services of BRAIN ORCHESTRA Management-Beratung GmbH are possible. If necessary changes and/or extensions to the defined scope of the order arise during the proper execution of the order, these must also be agreed in advance between the contracting parties or the client and the consultant. Insofar as the Customer cannot reasonably be expected to adhere to the contract with regard to changes or extensions proposed unilaterally by the Customer, the Customer shall be entitled to withdraw from the contract. For (partial) services already rendered by BRAIN ORCHESTRA Management-Beratung GmbH, (partial) compensation is to be paid in accordance with the agreed remuneration.
§5 principal obligation
(1) The customer must provide BRAIN ORCHESTRA Management-Beratung GmbH with all information and documents necessary for the execution of the order conscientiously, completely, truthfully and free of charge as well as in good time. BRAIN ORCHESTRA Management-Beratung GmbH must be informed immediately of any changes.
(2) The customer must inform BRAIN ORCHESTRA Management-Beratung GmbH of his own accord of all processes and circumstances which could be of significance for the execution of the order.
(3) The risk of the execution of the order without the fulfilment of the above paragraphs 1 and 2 is borne by the customer, unless BRAIN ORCHESTRA Management-Beratung GmbH is at fault.
§6 BRAIN BOOKS
(1) The contract for the purchase of a BRAIN BOOKS is concluded when the customer clicks on the "Download now" button.
(2) The client does not acquire any ownership of the BRAIN BOOKS, but exclusively a non-transferable, spatially and temporally unrestricted right to use the acquired content in order to download it to freely selectable terminal devices, store it and make it visible on terminal devices as often as desired. The BRAIN BOOKS are protected by copyright. A use may take place only under observation of the copyright for the own use.
(1) BRAIN ORCHESTRA Management-Beratung GmbH may make copies for its documents of the documents which have been made available to BRAIN ORCHESTRA Management-Beratung GmbH for inspection or handed over for the execution of the order.
(2) BRAIN ORCHESTRA Management-Beratung GmbH expressly reserves the copyright to the services provided.
§8 terms of payment
(1) The order fee is due for payment immediately and without deduction upon receipt of the invoice. BRAIN ORCHESTRA Management-Beratung GmbH can demand advance payments and/or issue partial invoices according to the services already rendered. BRAIN ORCHESTRA Management-Beratung GmbH is entitled to refuse its services until payment of any cost advances or settlement of any partial invoices. If the client is in arrears with the payment of cost advances or partial invoices in spite of setting a grace period, BRAIN ORCHESTRA Management-Beratung GmbH has the right to withdraw from the contract and/or to claim damages (see also paragraph (6)).
(2) For the calculation of services, the value added tax valid at the time of invoicing shall be shown separately and charged in addition to the order fee.
(3) The client is only entitled to the right of set-off if his counterclaims are legally established, undisputed or recognised by BRAIN ORCHESTRA Management-Beratung GmbH. In addition, the client is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
(4) If the client is in arrears with the payment of the invoice, BRAIN ORCHESTRA Management-Beratung GmbH may, subject to the assertion of further damages, demand default interest in the amount of 5 percentage points above the base interest rate.
(5) BRAIN ORCHESTRA Management-Beratung GmbH may withdraw from the contract after a reasonable period of grace and/or claim damages in cases in which the customer no longer has creditworthiness or in the event of insolvency proceedings being instituted against the customer's assets or refusal of such proceedings due to lack of assets. Subject to the assertion of higher damages by BRAIN ORCHESTRA Management-Beratung GmbH, this shall amount to 15 % of the agreed remuneration, unless the client proves that no or significantly lower damages have been incurred. This shall also apply in the event of non-compliance with the terms of payment or cessation of payments by the client.
§9 time limits
(1) BRAIN ORCHESTRA Management-Beratung GmbH is only bound by the order deadlines if this has been expressly agreed in text form in accordance with § 126b BGB (German Civil Code).
(2) Binding dates for the performance of services shall commence upon conclusion of the contract (see § 2). If an advance payment has been agreed or documents of the client are required, the period shall not commence until the advance payment or documents have been received. The later point in time is decisive in each case.
(1) In the case of a service relationship between the client and BRAIN ORCHESTRA Management-Beratung GmbH, the contract can be terminated in writing by either party at any time for good cause. An ordinary termination of the contract is excluded, unless it is an indefinite contract or the contract contains other provisions.
(2) An important reason for extraordinary termination for the client is in particular if BRAIN ORCHESTRA Management-Beratung GmbH grossly violates its contractual obligations even after prior warning in vain by the client.
(3) For important reasons, BRAIN ORCHESTRA Management-Beratung GmbH is entitled to terminate the contract in particular if the client refuses the necessary cooperation or if the client falls into financial difficulties or defaults on payment.
(4) If BRAIN ORCHESTRA Management-Beratung GmbH terminates the contract for an important reason without being caused to do so by culpable conduct on the part of the client that is contrary to the contract, or if BRAIN ORCHESTRA Management-Beratung GmbH initiates the termination on the part of the client for an important reason due to culpable conduct on its part that is contrary to the contract, BRAIN ORCHESTRA Management-Beratung GmbH can only demand remuneration for the partial service provided up to the time of termination to the extent that this is objectively usable for the client. In the other cases of termination for good cause, BRAIN ORCHESTRA Management-Beratung GmbH retains its claim to remuneration in the same way as for the performance of the service in accordance with the contract. Subject to the assertion of higher damages by BRAIN ORCHESTRA Management-Beratung GmbH, the remuneration shall amount to 15 % of the remuneration for the service not yet rendered by BRAIN ORCHESTRA Management-Beratung GmbH, taking into account any expenses saved, unless the client can prove no or significantly lower damages.
(1) BRAIN ORCHESTRA Management-Beratung GmbH exclusively provides services, with the exception of BRAIN BOOKS, and does not owe any specific success. It is the sole responsibility of the client to make the necessary decisions on the basis of the services provided and the risks involved.
(2) In addition to the statutory requirements, the provisions of § 11 shall apply to any claims for damages.
(1) BRAIN ORCHESTRA Management-Beratung GmbH is only liable for damages - regardless of the legal basis - if BRAIN ORCHESTRA Management-Beratung GmbH has caused these damages intentionally or grossly negligently or if BRAIN ORCHESTRA Management-Beratung GmbH has negligently violated an essential contractual obligation. Essential are all contractual obligations, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the contractual partner may regularly rely. In the event of a breach of essential contractual obligations in the case of simple negligence, the obligation of BRAIN ORCHESTRA Management-Beratung GmbH to pay compensation is limited to the foreseeable damage typical for the contract.
(2) The above limitations of liability shall not apply to bodily injury, damage to health or loss of life. Claims arising from product liability are also not affected by the above limitations of liability. The above limitations of liability shall also not apply in the event of fraudulent concealment of a defect and insofar as BRAIN ORCHESTRA Management-Beratung GmbH has assumed a guarantee for the quality of the item.
(3) If the client is entitled to a claim for damages instead of performance in accordance with the above liability regulations and if the client demands replacement of useless applications instead of this compensation, the liability of BRAIN ORCHESTRA Management-Beratung GmbH is limited to the replacement of foreseeable, typically to be incurred expenses in accordance with the regulation made in paragraph 1 in the case of simple negligence.
(4) Insofar as the liability for damages towards BRAIN ORCHESTRA Management-Beratung GmbH is excluded or limited, this shall also apply with regard to the personal liability for damages of the employees, representatives and vicarious agents of BRAIN ORCHESTRA Management-Beratung GmbH.
§13 data protection
(1) BRAIN ORCHESTRA Management-Beratung GmbH collects and stores the data of the client necessary for the execution of the contract. BRAIN ORCHESTRA Management-Beratung GmbH observes the statutory provisions when processing the personal data of the client. Further details can be found in the https://brainorchestra.com/datenschutz data protection declaration.
(2) Upon request, the client shall receive information about the data stored on his person at any time.
§14 final clause
(1) The place of performance for all claims arising from the contract is the registered office of BRAIN ORCHESTRA GmbH.
(2) The exclusive place of jurisdiction for all disputes is the registered office of BRAIN ORCHESTRA GmbH, insofar as the customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law.
(3) The contractual relationship shall be governed exclusively by German law, with the exception of international private law. The UN Convention on Contracts for the International Sale of Goods is excluded.
(4) Should any provision of these terms and conditions be or become invalid in whole or in part, or should a loophole become apparent, this shall not affect the validity of the remaining provisions. In this case, the client and BRAIN ORCHESTRA Management-Beratung GmbH undertake to strive for the intended purpose by agreeing a substitute provision.
§15 Provider identification, summonable address
Our address for complaints and other declarations of intent as well as our summonable address is as follows:
BRAIN ORCHESTRA Management Consulting Ltd.
represented by the managing director Mr. Markus Hoischen
Rethelstrasse 8, 22607 Hamburg, Germany
+49 40 228 53 93 90