1. Preamble
The Contractor has presented itself to Passion 4 Experts (P4EX) as a company or freelance specialist for the provision of IT, engineering, business, consulting, and management services.
The Contractor shall carry out a project-specific individual assignment on behalf of P4EX for its clients. The Contractor specializes in providing the services specified in more detail in the individual assignment (hereinafter referred to as the “Order”). The Contractor performs these services as a subcontractor for P4EX.
2. Scope of application
2.1. These General Terms and Conditions (GTC) govern the rights and obligations of the Contractor (hereinafter referred to as the “Project Partner” or “PP”) and the Client (hereinafter referred to as “P4EX”) arising from the contractual relationship, unless otherwise agreed in the Order.
2.2. The GTC shall apply in the version valid at the time the contract is concluded.
2.3. These GTC apply only to a Project Partner acting in the course of their commercial or freelance professional activities
2.4. The parties agree that these General Terms and Conditions shall apply exclusively; any conflicting or deviating terms and conditions of the Project Partner shall not be accepted.
3. Contract formation
3.1. A contract shall only be concluded upon signature of the Order by both parties.
3.2. If the Project Partner makes any changes to the Order, these shall only be considered if the Project Partner explicitly points them out and P4EX agrees to them.
3.3. Any amendments or additions to the Order must be made in writing.
3.4. The Order and these GTC constitute the entire agreement regarding the services to be provided. There are no verbal side agreements.
4. Subject of the contract
The Project Partner’s essential contractual obligations include the provision of the ordered services (4.1), the granting and transfer of the rights of use arising therefrom (4.2), and the preparation and provision of documentation (4.3).
4.1. Performance of the ordered services
4.1.1. The Project Partner shall provide P4EX with the services specifically agreed upon in the Order and shall receive the agreed remuneration in return. The services provided by the Project Partner shall only be subject to acceptance and, accordingly, payment by P4EX once the agreed service contents and service packages have been fully delivered.
4.1.2. The Project Partner is obliged to perform its services in accordance with the principles of proper professional practice and by applying the latest state of science and technology as of the time of completion.
4.1.3. The Project Partner warrants that it possesses the necessary know-how required to perform the services and has the required technical resources at its disposal.
4.1.4. The Project Partner shall support P4EX’s client with the due professional care customary in the industry and in accordance with standard market quality standards. In particular, it shall comply with generally accepted standards such as ISO 9001 and ISO 27001.
4.1.5. Furthermore, the Project Partner is obliged, within the scope of the performance of this contract, to continuously develop its professional expertise through regular training and to keep itself informed of current developments in its field of activity.
4.2. Granting and transfer of rights of use
P4EX is contractually obliged vis-à-vis its clients to grant them extensive rights of use and protection. In order for P4EX to pass these rights on to its clients and thereby fulfill its own contractual obligations, the Project Partner undertakes the following:
4.2.1. The Project Partner shall notify P4EX of all inventions, improvements, results, or know-how arising in connection with the performance of this contract. The Project Partner warrants that its services do not infringe any third-party rights, in particular copyrights or patents. The Project Partner shall immediately notify P4EX in writing if the Order or other documents defining the services could result in the infringement of third-party rights.
4.2.2. With respect to all results subject to copyright protection, in particular source code and documentation, the Project Partner grants P4EX, upon creation, an exclusive, irrevocable right of use that is unlimited in time, territory, and scope, and freely transferable to third parties at any time. This right includes all forms of use, including modification, reproduction, publication, distribution, as well as acts in accordance with Section 69c of the German Copyright Act (UrhG) and any other form of exploitation. The Project Partner expressly waives the right to be named as author, the right of access to the work, and the right to consent to publication. P4EX accepts this waiver in its own name and on behalf of its clients. If the results are capable of protection, P4EX shall be entitled to apply for such rights domestically and internationally in its own name, to abandon such rights, or to transfer them to its clients.
4.2.3. The Project Partner shall indemnify P4EX and its clients against all third-party claims, including any legal costs, arising from the infringement of intellectual property rights, in particular copyrights or patents, in connection with the services provided by the Project Partner.
4.2.4. Any other contractual or statutory claims of P4EX in connection with infringements of third-party rights shall remain unaffected by the above provisions.
4.3. Documentation
The Project Partner is obliged to prepare clear and comprehensive documentation, which must be created both in its own interest as a basis for invoicing and as an essential element of the proper performance of its contractual obligations, as specified below:
4.3.1. The Project Partner is required to provide comprehensive documentation of its results. The documentation also serves to enable P4EX to verify the performance results to be delivered.
4.3.2. Depending on the nature of the services to be provided, the documentation may include, in particular, application documentation (user instructions, manuals, and guidance, etc.), user manuals for hardware and software, and process descriptions. The documentation must—especially where the Project Partner develops custom software—enable the personnel designated by P4EX’s client for use and administration to properly operate the deliverables. Furthermore, the documentation must describe the technical structure and processes of the deliverables in such a comprehensive manner that the client is able to use the documentation without relying on the Project Partner, in particular to operate and further develop the deliverables independently.
4.3.3. Unless otherwise agreed, the documentation shall be handed over to P4EX upon completion of the agreed services.
5. Relationship of the Project Partner with P4EX and its clients
5.1. The Project Partner enjoys a position of special trust with P4EX based on the preliminary discussions held. The Project Partner performs the agreed services as an independent contractor. This forms the common basis of the concluded contract. No employment relationship is established by this contract.
5.2. The Project Partner is not integrated into the organizational structure of P4EX nor into the work organization of the client. The Project Partner is not subject to instructions from either P4EX or the client. The Project Partner is free to determine the manner in which the services are performed, including content, time, place, and execution.
5.3. If the Project Partner receives any technical or performance-related instructions, it shall notify P4EX immediately. In the event of any discrepancies regarding the performance of the contract, the Project Partner shall contact P4EX or the designated contact person named prior to the conclusion of the contract. Any questions relating to the execution of the services under the Order shall be clarified exclusively with P4EX or the designated contact person on the part of P4EX.
5.4. If the Project Partner performs services on-site at P4EX’s client, it shall familiarize itself at the beginning of its work with the applicable safety, environmental, and data protection regulations at the client’s premises. The Project Partner shall comply with these regulations in the performance of its services.
6. Scope of engagement
6.1. Performance of the services is subject to a written call-off by P4EX. If no call-off is made within four weeks from the agreed start date of the service period, the Project Partner shall be entitled to withdraw from the contract.
6.2. Where appropriate in individual cases, the parties shall agree on binding completion dates within the framework of the respective Order.
6.3. The agreed total price specified in the Order may only be exceeded by the Project Partner with the prior written consent of P4EX and upon issuance of a corresponding new order by P4EX.
7. Subcontracting of services
7.1. The Project Partner is not required to perform the contractually agreed services personally. It may engage other persons, provided that they possess the qualifications necessary to perform the services.
7.2. The engagement of subcontractors shall require the prior written consent of P4EX.
7.3. P4EX shall be entitled to request the replacement of any person engaged by the Project Partner if there is a valid reason for doing so. This is particularly the case if the person engaged does not possess sufficient qualifications for the performance of the services. Any additional costs incurred by the Project Partner in this context shall not be reimbursed.
8. Price, invoicing, and payment
8.1. The agreed total price covers all services specified and defined in the Order. Unless otherwise agreed in the Order, the price shall include all ancillary costs, expenses, travel costs, and travel time. The price is exclusive of value-added tax (VAT) at the applicable statutory rate.
8.2. The price shall be calculated on a time and materials basis with a maximum cap, meaning that the total of the monthly invoiced partial services must remain within the agreed total price.
8.3. If a fixed lump-sum price has been agreed, the following shall apply in deviation from Section 8.2: Unless otherwise agreed, the fixed price shall become due upon full performance of the services. Payment is subject to acceptance of the services and submission of the documents required for issuing the credit note.
8.4. The Project Partner shall submit monthly—no later than 5 working days after the end of the previous month—the original service reports signed by the project manager of P4EX’s client, as well as, optionally, an expense statement and corresponding receipts for the previous month, including the P4EX order number, unless a fixed price or another deviating arrangement has been agreed. The documents must be sent electronically as PDF files by email to the contact person at P4EX specified in the Order. Documents sent by fax and/or without the order number cannot be accepted.
8.5. P4EX shall issue a credit note to the Project Partner based on the Order and the currently applicable VAT. Documents submitted incorrectly shall only be deemed received by P4EX at the time they are corrected. Without service reports signed by the client, P4EX cannot issue credit notes. If such proof is missing, all submitted documents shall be considered improperly submitted.
8.6. Upon receipt of the service reports and other supporting documents, P4EX shall arrange payment of the credit note amounts, at its discretion, either within 30 days without deduction or within 3 working days subject to a 3% cash discount, after issuance of the credit note. If a different payment term (e.g., “30 days net”) is agreed in the Order, only this agreed payment term shall apply.
8.7. Any costs incurred for payments abroad shall be borne by the Project Partner.
8.8. Payments shall not constitute acknowledgment of contractual conformity of the services and are made subject to verification of delivery and performance.
8.9. If the Project Partner assigns claims for payment against P4EX, P4EX may nevertheless make payment to the Project Partner with discharging effect.
9. Insurance, taxes, and regulatory approvals
9.1. The Project Partner shall bear sole responsibility for its own health, long-term care, pension, and accident insurance. The Project Partner shall also be responsible for paying all applicable taxes. The Project Partner shall, at its own expense, take out voluntary insurance in the statutory accident insurance scheme as a self-employed person or provide evidence of equivalent private accident insurance for its self-employed activities.
9.2. The Project Partner shall, at its own expense and prior to the commencement of the contract, take out adequate public liability insurance and maintain such insurance for the duration of the contractual relationship. Proof of such insurance shall be provided to P4EX upon request.
9.3. The entrepreneurial independence and responsibility of the Project Partner has been taken into account in the calculation of the agreed price.
9.4. The Project Partner shall ensure that all official permits, approvals, or certificates required for the performance of its services are obtained. The Project Partner shall also be obliged, at its own expense, to maintain any permits, approvals, visas, work permits, or official authorizations required for the performance of its services throughout the duration of the cooperation. If P4EX is held liable by a third party due to a violation of the above provisions and/or due to a breach by the Project Partner of regulatory requirements, approvals, or conditions, the Project Partner shall indemnify P4EX against all costs upon first demand. If the Project Partner violates applicable residence permits, visas, or related conditions resulting in claims against P4EX, the Project Partner shall be fully personally liable towards P4EX.
10. Liability, warranty, and limitation period
10.1. Any reimbursement of expenses or compensation for damages incurred by the Project Partner or by persons engaged by it in the performance of the services, for which P4EX is not responsible, shall be excluded vis-à-vis P4EX.
10.2. If the Project Partner uses its own hardware and/or software to perform the agreed services, it shall ensure that such hardware and/or software is free from malware. If the Project Partner causes damage to hardware and/or software at P4EX or at a client of P4EX due to malware, in particular through virus infection, the Project Partner shall bear the costs for remedying such damage and any consequential damages.
10.3. If the Project Partner assumes corporate management responsibilities for a client of P4EX, it shall ensure adequate Directors & Officers (D&O) liability insurance, which is to be taken out by the client in the name of the Project Partner. Proof of the existence of such insurance shall be provided to P4EX upon request.
10.4. If the Project Partner performs tasks in the nature of interim management, it shall be obliged to obtain professional indemnity insurance for financial losses. Proof of the existence of such insurance must be provided to P4EX prior to the first day of the project. If adequate insurance coverage is not in place, the Project Partner shall not be entitled to be deployed at the client. In such a case, the Project Partner shall not be entitled to any remuneration.
10.5. The limitation period for claims based on defects in quality and title under contract for work shall generally be 36 months, and 60 months for claims based on defects in title relating to custom software, in each case from the written declaration of acceptance, unless otherwise agreed. Notwithstanding the above, such claims shall be subject to the statutory limitation period if the Project Partner has fraudulently concealed the defect. In such a case, however, the limitation period shall not expire before the periods set out in sentence 1 of this clause. Within the above-mentioned periods, the Project Partner shall be obliged to remedy defects in the services provided by it, unless it is not responsible for such defects.
10.6. The liability of the Project Partner in accordance with statutory provisions shall remain unaffected.
11. Notification obligations
11.1. If the Project Partner considers the information and requirements provided to it to be insufficiently specified, incomplete, contradictory, objectively infeasible, or otherwise inadequate, it shall immediately notify P4EX in writing; the same applies if any materials or resources provided are not in accordance with the contract.
11.2. If, until completion of the services to be provided, there are changes in the latest state of science and technology, the Project Partner shall immediately notify P4EX and at the same time describe such changes in writing.
11.3. Upon request, the Project Partner shall promptly provide P4EX with written information on the current status and target status of the services agreed in the Order, including their fulfillment, costs, and timelines.
11.4. If the Project Partner determines that compliance with a completion or acceptance deadline is at risk, it shall immediately notify P4EX in writing.
11.5. If the Project Partner develops or modifies custom software, it shall, upon request and within a reasonable period, but in any case no later than completion of its services, inform P4EX which tools it has used or developed in the course of its activities.
11.6. Upon request, both prior to the commencement of the contractual relationship and during its execution, the Project Partner shall provide P4EX with information regarding its activities for P4EX’s client(s) as well as its personal circumstances, insofar as P4EX has a legitimate interest in such information, in particular for the purpose of clarifying its social security status. The Project Partner warrants the completeness and accuracy of the information provided. Incorrect information shall entitle P4EX to rescind the contract or to terminate it without notice, and to assert claims for damages against the Project Partner.
12. Contract term and termination
12.1. The contract shall terminate upon fulfillment of the services commissioned in the Order, but no later than upon reaching the agreed total price.
12.2. The termination of the contract shall be governed by the applicable statutory provisions. Notwithstanding the above, P4EX shall be entitled to terminate the contract within the first 30 days with a notice period of 1 project day, and thereafter with a notice period of 10 project days.
12.3. The right to terminate the contract for good cause shall remain unaffected.
12.4. In the event of termination of the contract, the services performed in accordance with the contract up to the time of termination shall be remunerated. The Project Partner shall not be entitled to any further claims.
12.5. Any termination must be made in writing or in electronic form.
13. Non-solicitation agreement
13.1. The Project Partner shall be entitled to provide services to third parties, provided that this does not violate its obligations towards P4EX under the Order or any subsequent obligations. Prior consent from P4EX is not required.
13.2. The Project Partner is prohibited, during the execution of an Order, from working for the client of P4EX named in the Order in any capacity—whether self-employed, employed, or otherwise—including indirectly through third parties.
13.3. The Project Partner is prohibited, for a period of 12 months following the termination of the contract, from working for the client of P4EX named in the Order in any capacity—whether self-employed, employed, or otherwise—including indirectly through third parties.
13.4. For each breach of the non-solicitation obligations set out in Sections 13.2 and 13.3, the Project Partner shall pay P4EX a contractual penalty amounting to 5% of the order value of this Order, including all prior order items associated with the relevant order number.
13.5. The contractual penalty pursuant to Section 13.4 shall not exceed EUR 15,000 per violation and per month.
13.6. In the event of a continuing breach, the contractual penalty shall accrue anew for each commenced month. The defense that the breaches are based on a continuing act and that the contractual penalty is therefore payable only once is excluded.
13.7. The Project Partner undertakes to impose the non-solicitation obligation set out in Section 13.2 on any persons engaged by it to perform the contractual services. The Project Partner further undertakes to impose the non-solicitation obligation set out in Section 13.3 on any such persons.
13.8. For each breach of the obligation to impose the non-solicitation provisions on the persons engaged by it, the Project Partner shall pay P4EX a contractual penalty of EUR 15,000 as compensation for lost profit and expenses incurred in sales and marketing.
13.9. The right to claim damages exceeding the contractual penalties set out in this Section 13 remains reserved.
14. Confidentiality and return of materials
14.1. The Project Partner shall keep strictly confidential, without limitation in time, all trade and business secrets as well as all information and matters designated as confidential or to be considered confidential under the circumstances, which become known to the Project Partner in connection with its activities for P4EX and its clients, even after completion of the contract. Furthermore, the Project Partner shall obligate any persons engaged by it to perform the contractual services to maintain confidentiality accordingly and shall provide proof of such obligation upon request by P4EX. These obligations shall not apply to information that was already lawfully known to the Project Partner prior to its disclosure without any obligation of confidentiality, or that is or becomes publicly available without fault on the part of the Project Partner, or that has been released in writing by the disclosing party.
14.2. The Project Partner is prohibited from disclosing the Order or any other contractual documents of this contractual relationship, in particular the terms and conditions of the Order, to third parties. The Project Partner shall keep all details of the agreed remuneration, in particular its nature and amount, confidential vis-à-vis unrelated third parties. This confidentiality obligation shall not apply to professional advisors who are bound by statutory or professional confidentiality obligations.
14.3. Without the prior express written consent of P4EX’s client, the Project Partner and any persons engaged by it to perform the contractual services shall not remove from the client’s premises any items, business documents, records (in the broadest sense), documents, parts, drawings, samples, processes, procedures, programs, contracts, agreements, or similar materials belonging to P4EX or its clients, as well as any information and data (hereinafter referred to as “Information”), regardless of type. Furthermore, the Project Partner and any persons engaged by it shall not reproduce such Information and/or use it for their own purposes or for third parties.
14.4. For each breach of the above confidentiality obligations, the Project Partner shall pay a contractual penalty in the amount of EUR 25,000 to P4EX.
14.5. P4EX may at any time request the return of any information created, received, or obtained within the scope of the contract by the Project Partner, which shall be returned immediately. At the latest upon termination of the contract, the Project Partner shall return all information and materials to P4EX or its clients. The Project Partner shall have no right of retention in this regard. This applies in particular to the usage rights to be granted pursuant to Section 4.2 and the documentation to be provided pursuant to Section 4.3.
15. Data protection
15.1. The Project Partner shall comply with the provisions of the General Data Protection Regulation (GDPR), in particular the prohibition of collecting, processing, or using personal data without authorization. In carrying out the assignments, the Project Partner shall only engage personnel who have been bound to data confidentiality in accordance with the GDPR. The obligation not to collect, process, or use personal data without authorization shall continue to apply even after the termination of the Project Partner’s activities.
15.2. The Project Partner is obliged to conclude a data processing agreement (DPA) with the client of P4EX if, in the course of providing the services, the legal requirements for such an agreement are met. Should the Project Partner engage third parties for the processing of personal data, this shall require the prior written consent of P4EX.
15.3. The Project Partner shall ensure compliance with the applicable data protection requirements and shall provide P4EX with written evidence of such compliance upon request.
15.4. Upon request by P4EX, the Project Partner shall provide proof of the GDPR-compliant destruction of confidential documents and/or data carriers provided to it by P4EX or by P4EX’s client.
15.5. If the Project Partner processes personal data on behalf of P4EX, P4EX shall be entitled, upon prior notice, to verify compliance with the contractual and data protection requirements at the Project Partner’s business premises.
16. Supplementary provisions
16.1. Unless otherwise mandatorily required by law, the exclusive place of jurisdiction for all disputes arising out of or in connection with this contractual relationship shall be the registered office of P4EX.
16.2. This contractual relationship, including its formation and all rights and obligations arising from it, shall be governed exclusively by the laws of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) and German private international law, unless otherwise mandatorily required by law.
16.3. Should individual provisions of this contract be or become invalid, this shall not affect the validity of the remaining provisions of the contract.
16.4. The contracting parties undertake to replace any invalid provision with a valid provision that most closely reflects the economic purpose of the original provision. The same shall apply in the event of any gap in the contract.