Terms & Conditions
General Terms and Conditions of Miserok Rittweger Advisors in Healthcare GmbH for Consultation Services
The following “Terms and Conditions” apply for contracts between Miserok Rittweger Advisors in Healthcare GmbH, Maximilianstrasse 31, 80539 Munich (hereinafter named “AIHC”) and its clients as far as otherwise is not expressly agreed in writing or mandated by law. The Terms and Conditions below apply for all orders for consultation, planning, organisation, and examination work on a service contract basis as far as otherwise does not arise from the AIHC offer or from written agreements between the parties.
1. Scope and Execution of the Order
The order issued is controlling regarding the scope of the services to be performed by AIHC. The order will be executed according to the principles of proper professional practice. AIHC shall assume that the information and documents which are named by the client and relevant are correct.
2. Secrecy Obligation
AIHC is obligated to maintain secrecy with regard to all facts of which it has gained knowledge in connection with the execution of the order, unless the client releases AIHC in writing from this obligation. The secrecy obligation continues even after the ending of this contractual relationship. The secrecy obligation also exists to the same extent for the employees of AIHC as well as its freelances and third parties appointed by AIHC. The secrecy obligation shall not exist where necessary to protect legitimate interests of AIHC. In this respect, AIHC is also released from the secrecy obligation where it is obliged to give information and cooperation according to the terms of any professional liability insurance. AIHC may issue reports, opinions, and other written statements on the results of its activity to third parties only with the consent of the client.
3. Duty of Loyalty
The contract partners commit to maintain mutual loyalty. In particular, before the expiration of twelve months after the ending of the collaboration, they shall refrain from hiring or other engagement of employees of the contract partner which have been active in connection with the order execution. A breach against this provision shall result in liquidated damages of €25,000.
4.1 Except for personal injury, AIHC shall be liable to the client for damages only in the case of serious fault (intent or gross negligence). This also applies mutatis mutandis for damages stemming from third parties involved by the contractor.
4.2 Damage compensation claims of the client can only be judicially asserted within six months from discovery of the damage and the tortfeasor, but no later than three years after the incident giving rise to the claim.
4.3 The client shall produce evidence that the damage is attributable to the fault of AIHC or to one of AIHC’s vicarious agents.
4.4 If AIHC performs services with the help of third parties, and in this connection warranty and/or liability claims arise against these third parties, then AIHC shall assign these claims to the client. In this case the client shall primarily refer to these third parties.
5. Duties of the Client
5.1 The client is obliged to cooperate to the extent necessary for proper execution of the order. In particular, without the need for a request, the client shall hand over all documents to AIHC necessary for the execution of the order, completely and in a timely manner so that AIHC is provided with a reasonable processing time. The same applies for the disclosure of all processes and circumstances which could be important for the execution of the order. The client is obliged to take note of all written and verbal notifications from AIHC and to discuss further in cases of doubt.
5.2 The client shall refrain from anything which could interfere with the execution of the order. The client commits to only disclose work results of AIHC with AIHC’s written consent as far as the disclosure consent concerning a specific third party is not already found in the order content.
6. Client’s Failure to Cooperate and Acceptance Delay
If the client fails to cooperate as so obliged under §5 or otherwise, or if he delays the acceptance of the services offered by AIHC, then AIHC is entitled to set a reasonable period to remedy the situation and declare that it refuses to continue the contract after the deadline has expired. After unsuccessful expiration of the period, AIHC may terminate the contract without notice (see §9 para. 2). AIHC’s claim to compensation for extra expenditures incurred and damages caused due to the client’s delay or failure to cooperate remains unaffected, even if AIHC does not make use of the termination right.
7. Remuneration Calculation
The remuneration is calculated based on the fee agreed with the client. For activities which may not result from the agreement or do not clearly result from such, where there is doubt, the usual remuneration applies (§612 para. 2 and §632 para. 2 German Civil Code (BGB)).
8. Remuneration, Accounts Settling, Payment Conditions
8.1 The prices named in the AIHC offer are decisive, plus any applicable value-added taxes. Additional services which are not contained in the offer are to be separately compensated. This especially applies for extra expenditures resulting from presentation of data in a non-digitalised form, necessary and reasonable use of third-party services, expenses incurred for licences, research commissioned, test services and legal checks, as well as services which due to circumstances for which the client is responsible, are rendered outside of business hours. If not already set as travel and overhead lump-sum in individual contracts, then transportation costs and expenses for travel will be charged at cost.
8.2. External and materials’ costs of will be separately invoiced. All cost which stem from the hiring of a third party are included here. Here, AIHC differentiates between materials and external costs, additional handling and travel costs. External costs incurred from production work (e.g. printing costs), will be passed on with a commission of 15 percent for the services rendered by the third party as well as the assumption of the payment service (handling costs); upon request the external invoices will be presented. Where applicable, the handling can also be calculated based on time, or compensated with a lump-sum basis fee. Upon request other external costs or costs for additional services, e.g. for the use of cutting services, event costs, licence fees, legal consultation, insurance, etc., will be charged as processing costs upon provision of proof; upon request the external invoices will be presented.
Where applicable, AIHC is entitled to invoice the contract partner for prepayments made for such purposes.
8.3 Before the start of work, for all internal or external services which exceed the agreed lump-sum fee, AIHC will issue for approval a cost estimate to the contract partner for the services to be rendered in each case. The cost estimation contains at a minimum for example, the incidental individual services, the expected external services as well as expenditures. Cost estimates and calculations are non-binding unless this is assured expressly and in writing. Anticipated exceedance of the preliminary calculation or of the cost estimate of more than 10%, will be immediately notified to the contract partner after realisation of the circumstances, unless the client has caused this situation. External and ancillary costs are to be compensated separately upon presentation of evidence if another agreement is not expressly made. Upon a material change to the contractual duties of AIHC for the purpose of adjustment to the interests of the contract partner, AIHC can invoice the necessary extra expenditures. This also applies for the comprehensive check of whether and under what conditions the change or expansion is executable, as far as AIHC pointed out the necessity of this check.
8.4 If otherwise is not agreed, AIHC’s claim to the fee begins for each individual service as soon as it is rendered. The invoice will be sent per email (pdf) or via post to the customer and shall be settled without deduction no later than 30 days after invoicing. For long-term contracts, monthly fees are to be paid monthly in advance and are due upon invoicing. Other fees shall be due upon the rendering of the service and invoiced to the contract partner.
8.5 For projects, AIHC can invoice 50% of the offer sum upon the placing of the order. The remaining 50% is due after acceptance or completion of the service. The contract partner is hereby alerted to the fact that AIHC credits payments first to older debts. If costs have already incurred for legal procedure such as reminder costs, then AIHC may credit payments from the customer initially to these costs, then to interest, and lastly to the main service.
8.6 If the contract partner changes or prematurely cancels the order, work or comprehensive planning, then the client shall reimburse AIHC for all costs incurred and release and hold AIHC harmless from all liabilities toward third parties. The assertion of further claims remains unaffected by this.
8.7 In the event of payment delay, AIHC may demand delay interest of 8% over the basis rate of the European Central Bank at the time. The assertion of provable damages in excess of such remains unaffected by this. The delay interest accrues upon exceeding or completion of the service. The contract partner is hereby alerted to the fact that AIHC credits payments first to older debts. If costs have already incurred for legal procedure such as reminder costs, then AIHC may credit payments from the customer initially to these costs, then to interest, and lastly to the main service.
9. Termination of the Contract
9.1 The contract ends with the fulfilment of the agreed services, the expiration of the agreed term, or by termination. The contract does not end by death, by the occurrence of legal incapacity of the client, or in the case of a company, by its dissolution.
9.2 A contract concluded for an indefinite period can, if and to the extent that it is a service contract in the sense of §§ 611, 675 BGB, be terminated by either contract partner according to the provisions of §§ 626 BGB et seq.; the termination shall occur in writing. As far as deviations from this are made in individual cases, a written agreement is required which is to be issued separately and is to be delivered to the client along with these General Terms and Conditions upon contract conclusion.
10. Storing, Release, and Retention Right regarding Work Results and Documents
10.1 AIHC shall store the documents for one year after ending of the order. This obligation expires before the ending of this period if AIHC requests in writing that the client take receipt of the documents and the clients does not do so within one month after receiving the request.
10.2 Upon request of the client, AIHC shall release the documents to the client within a reasonable time period. AIHC make and retain transcripts or photocopies of documents which it gives back to the client.
10.3 AIHC can refuse the release of its work results and the files until it is satisfied regarding its fees and expenditures. This does not apply to the extent that based on the circumstances and in particular due to the relative insignificance of the amounts owed, the retention would breach good faith.
11. Copyrights and Rights of Use
11.1 All rights to the preliminary work, e.g. drafts and concepts as well as other work results, in particular copyrights, rights of use and ownership, remain with AIHC even after handing over of work results to the client, as far as they are not expressly assigned in writing. With full payment, the contract partner acquires the use rights to work performed by AIHC in the scope of this order in the contract territory for the agreed purpose and in the agreed scope for the term of the contract, where this grant of rights is possible under German law or the actual circumstances. As far as otherwise is not agreed, only the simple right of use is assigned in each case. A separate prior fee agreement is generally required for the assignment of use rights to third parties.
11.2 The client warrants that it possesses all rights to the transmitted data and materials necessary for the execution of the order. The client releases AIHC from all claims of third parties which arise due to the violation of third-party claims or statutory provisions during the execution of the order. Further, AIHC shall be released from the costs of necessary legal defence. The client is obliged to support AIHC in good faith with information and documents in the legal defence against third parties.
11.3 If third parties (vicarious agents) are used in the contract fulfilment, then if possible, AIHC shall acquire the necessary use rights and grant such to the contract partner to the same extent. The contract partner warrants that the content which it provides (texts, pictures, logos, etc.) is free from the rights of third parties which exclude or restrict the use as according to the contract. The contract partner releases AIHC from all such third-party claims.
11.4 If the contract partner wants to in whole or part, exceed the originally agreed purpose or scope of the work produced by AIHC, or to use such abroad, a separate prior fee agreement is required. The same applies if the contract partner wants to continue using the work produced by AIHC after the ending of the collaboration, unless all use rights were already compensated.
11.5 Suggestions of the contract partner or its other cooperation, have no influence on the amount of the remuneration. Such does not justify joint copyright. Upon use of templates of the customer, AIHC assumes that such are not encumbered with third-party rights or that the customer possesses the use rights necessary for the order.
11.6 As a matter of principle, all distributions are the property of AIHC or where applicable, of its media partner. They will not be disclosed externally. Only the index of individual distributions will be provided to customers on request. All services and even individual parts thereof, remain the property of AIHC.
12. Collection and processing of data
12.1 Declaration of consent for storage of customer data
The client agrees that his personal data, namely e-mail address, name, address and telephone numbers, are stored and processed by AIHC for the purpose of sending offers and making contact.
12.2 Obligation to provide information
The client is entitled, upon request and free of charge, to receive information about the data stored about him
12.3 Obligation to rectify, erase ("right to be forgotten") and to restrict processing
The client has the right to obtain the rectification, erasure or blocking of incorrect data. The application can be made informally, or even orally if necessary.
12.3.1 Right to erasure
The condition for the right of erasure is that one of the following reasons applies:
- The personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed.
- The data subject has withdrawn his/her consent to data processing (and there is no other legal basis).
- The data subject has lodged an objection to the processing (and there are no overriding legitimate grounds for processing).
- The personal data have been unlawfully processed.
- The personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject.
- The data were collected by a child in the context of an information society service.
12.3.2 Right to restriction
The condition for the right of restriction is that one of the following reasons applies:
- The person concerned has disputed the accuracy of the personal data as long as the person responsible, AIHC, checks the accuracy of the personal data.
- The processing is unlawful and the data subject has refused to delete the personal data and has instead requested that the use of the personal data be restricted.
- The data controller, AIHC, no longer needs the personal data for the purposes of processing, but the data subject does so in order to assert, exercise or defend legal claims.
- The data subject has filed an objection to the processing until it has been established whether the legitimate grounds of the data controller, AIHC, prevail over those of the data subject..
12.3.3 Procedure for a request for rectification
The company responsible, AIHC, will rectify the data of the person concerned. Taking into account the purposes of the processing, the data subject also has the right to request the completion of incomplete data.
12.3.4 Procedure for a request for erasure
The company responsible, AIHC, erases the data of the person affected.
12.3.5 Procedure for a request for restriction
The company responsible, AIHC, only stores the data of the person concerned, but does not perform any other processing steps.
12.3.6 Procedure for notification
The person concerned shall be informed in writing of the action taken, in a compact, transparent, comprehensible and easily accessible form. Electronic media (especially e-mail) will be used in particular if the application was submitted electronically. Upon express request of the person concerned, the letter will be sent on paper. Oral communication is possible at the request of the person concerned, provided there is no doubt as to his or her identity.
13. Applicable Law and Place of Performance
German law applies exclusively for the order, its execution, and the claims arising therefrom. Place of performance is the place of the business branch of AIHC in Munich.
14. Effectiveness in the event of Partial Invalidity
Should provisions of these Terms and Conditions be invalid, such shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid one which comes as close as possible to the intended objective.
15. Changes and Additions
Modifications and additions to these Terms and Conditions require written form. Changes to these Terms and Conditions will be notified on the AIHC internet site www.advisorsinhealthcare.com.