1.1 Subject matter of the contract. MODUS OPERANDI GmbH, Eppsteiner Straße 55, 60323 Frankfurt/Main, Germany, registered with the commercial register [Handelsregister] of the local court [Amtsgericht] Frankfurt am Main HRB 134356, kontakt@modus-operandi.de, phone +49 (0) 172 78 35 196, VAT ID (Section 27a German VAT Act [UStG]) DE367467733 (“MODUS OPERANDI“; for details see www.modus-operandi.de), represented by the managing director Robert Koppe, offers customized consulting and project management services as well as related services and other comprehensive assistance to manage and the change in living conditions of elderly people (especially when moving to a more senior-friendly living environment). All MODUS OPERANDI services (“Project Services“; see also Section 3.2) are provided against payment of the agreed fees (“Project Fee“; see also Section 5.) on the basis of a contract (“Project Contract“; see Section 2.) concluded with the respective client (collectively and gender-neutrally “Client“, “you” or “your“) for the achievement of the jointly defined project or goal (“Project“). The Project Contract includes the following General Terms and Conditions of MODUS OPERANDI (“GTC“).
1.2 Completeness; order of priority; individually agreed terms. The Project Contract and the GTC incorporated therein contain the complete agreement between MODUS OPERANDI and the Client (individually also a “Party” and jointly the “Parties“) for the Project and set out the mutual contractual rights and obligations. All agreements made between the Parties in the Project Contract or in other individual cases (e.g. subsequent contractual amendments) shall in any case take precedence over the provisions of these GTC in the event of conflicting provisions or contradictions; subject to proof to the contrary, a written agreement or mutual written confirmation shall be decisive for the content of such individually agreed terms. Any general terms and conditions of the Client or third parties which deviate from, conflict with or supplement these GTC shall not apply and shall not become part of the Project Contract unless MODUS OPERANDI has expressly agreed to their application in individual cases.
1.3 Written Form. The “writing” or “written form” requirement within the meaning of these GTC shall be deemed to have been complied with if the written form, text form (e.g. e-mail, fax, letter), electronic form or an electronic signature service (e.g. Adobe Sign, DocuSign) is used.
1.4 Third parties. As the case may be, MODUS OPERANDI shall be entitled to make use of the services of third parties as vicarious agents [Erfüllungsgehilfen] to fulfill the existing obligations under the Project Contract; in such event, these third parties shall have a contractual relationship only with MODUS OPERANDI. The Parties shall not be permitted to transfer the Project Contract or any rights arising therefrom to third parties without the prior consent of the other Party, which may not be unreasonably withheld or delayed. For the avoidance of doubt, external service providers working for the Client (see Section 5.3) do not qualify as vicarious agents of MODUS OPERANDI.
1.5 Amendments to the GTC. In the event of an impending amendment to these GTC, MODUS OPERANDI shall inform the Client of the envisaged amendments in due time and in writing and shall make the new text available to the Client. The Client shall have the opportunity to object to the amendments in writing within two (2) months of being informed of the amendment. If there is no objection by the Client, this shall be deemed to constitute the Client’s consent to the proposed amendments; MODUS OPERANDI shall point this out again in the amendment notification. In the event the Client objects, the GTC shall apply unchanged in the same form as at the time prior to the amendment. Implied consent by silence in accordance with this Section 1.5 shall not be possible with regard to amendments which affect main contractual obligations [vertragliche Hauptleistungspflichten] or other essential provisions.
2.1 Principal. Client may be the person concerned himself/herself or his/her relatives or authorized representatives. If the Client is a relative or authorized representative, he/she must provide proof of the necessary power of representing the Client.
2.2 Initial meeting. MODUS OPERANDI offers an initial meeting in person with the Client to assess the individual starting position for the potential Project and identify personal motivations, expectations and other requirements as a basis for planning and to present MODUS OPERANDI’s range of services. This initial meeting is already a contractual service and shall be compensated with a flat-rate fee, the amount of which shall be communicated to the Client in advance; the provisions of Section 5. shall apply mutatis mutandis to invoicing.
2.3 Initial offer; project offer. 1.1 Based on the initial meeting, MODUS OPERANDI shall prepare a non-binding initial offer for the implementation of the Project with an overview list of optionally selectable Project Services, including the expected remuneration, from which the Client can name the Project Services to be provided. Once the Client has made such selection and submitted it to MODUS OPERANDI, MODUS OPERANDI shall prepare a customized and binding offer for the Project (“Project Offer“).
2.4 Conclusion of contract. The Project Contract shall be concluded upon written acceptance of the Project Offer by the Client. In the event of an acceptance with amendments or late acceptance, a new offer shall be deemed to have been made which must be accepted in writing by MODUS OPERANDI to conclude a Project Contract.
2.5 Right to revoke the contract. If the Client is a consumer (i.e. any natural person who enters into a legal transaction for a purpose that is predominantly neither commercial nor self-employed) and the contract for the initial consultation and/or the Project Contract was concluded exclusively using means of distance communication (e.g. telephone, fax, e-mail, post, Internet) or outside business premises, the Client has a right to revoke the contract pursuant to the applicable the statutory provisions. Further information on this can be found in the revocation instruction for consumers.
3.1 Mission and self-image. MODUS OPERANDI’s mission is to support Clients and their family members in dealing with the factual, legal and organizational challenges that arise in the course of the Project in a reliable, discreet, transparent and trustworthy manner. MODUS OPERANDI acts as a central point of contact and coordinator for both the Client and all other persons involved in order to disencumber the Client in this respect.
3.2 Service overview. The nature and scope of the Project Services to be provided by MODUS OPERANDI during the term of the Project Contract shall be defined in detail and as required in the Project Contract. Essentially, the Project Services may relate to services in the form of the following activities or in the following areas:
3.3 Time and place of performance. Unless otherwise agreed or required due to the nature of the activity, MODUS OPERANDI shall determine the place and time of performance and the manner of performance at its own discretion. As a rule, Project Services shall be provided on working days.
3.4 Service exclusions. The Project Services shall be provided by MODUS OPERANDI in accordance with the agreements between the Parties and with customary diligence and the greatest possible conscientiousness. However, since MODUS OPERANDI’s services are essentially of an advising, communicative or coordinative nature, MODUS OPERANDI cannot assume any warranty or guarantee, either express or implied, that a specific success will be achieved. Legal or tax advice is not part of the Project Services.
3.5 Minutes. MODUS OPERANDI prepares minutes of the initial meeting, as well as of all other meetings, which are made available to the Client in copy.
3.6 Representation of the Client. MODUS OPERANDI shall only be entitled to act as a representative of the Client vis-à-vis third parties (particularly to conduct negotiations and make or receive legal declarations) if this has been agreed in advance or MODUS OPERANDI has received the necessary power of attorney from the Client in writing.
3.7 Confidentiality; data privacy. MODUS OPERANDI shall treat all information received from the Client with appropriate confidentiality and shall comply with its obligations under data protection law with regard to personal data of the Client or other data subjects. For further information on data privacy, please refer to MODUS OPERANDI’s privacy policy.
3.8 No exclusivity. MODUS OPERANDI shall be entitled to act for other Clients.
4.1 Remuneration obligation. The Client shall be obliged to pay MODUS OPERANDI the agreed Project Fee and to reimburse costs and expenses. The provisions of Section 5 shall apply in this respect.
4.2 Cooperation obligations. The Client shall promote the Project Services by appropriate acts of cooperation. Such cooperation shall include, in particular, that the Client provides MODUS OPERANDI with all necessary documents, files, records and information in a timely, correct and complete manner, provides information, carries out coordination and, if necessary, issues powers of attorney and similar documents. Where necessary, the Client shall ensure that such obligations to cooperate are also fulfilled by family members, partners or other parties involved in the Client’s sphere of life.
4.3 Up-to-dateness. The Client is obliged to keep the information provided to MODUS OPERANDI up to date at all times and to correct it immediately as soon as relevant changes occur.
4.4 Failure to cooperate. MODUS OPERANDI shall be released from its obligation to perform the Project Services for as long as and to the extent that the Client fails to comply with its obligations to cooperate under Sections 4.2 and 4.3. If MODUS OPERANDI is unable to complete the Project Services in whole or in part or within the agreed time due to this failure, the agreed period shall be extended to the extent of the resulting delay. Without prejudice to MODUS OPERANDI’s other rights, MODUS OPERANDI shall be remunerated separately for any additional expenses incurred and proven on the basis of the agreed conditions.
4.5 Copyright. MODUS OPERANDI shall retain the copyrights to the works created by MODUS OPERANDI (in particular offers, reports, analyses, specifications, drafts, calculations, drawings, data carriers, etc.). They may only be used by the Client for purposes compliant with the Project Contract.
5.1 Amount of the Project Fee. In return for the provision of the Project Services, MODUS OPERANDI shall receive the Project Fee agreed in the Project Contract. The amount of the Project Fee shall be based on the scope of services commissioned by the Client and the actual (possibly flat-rate) expenses incurred in this respect, together with any surcharges and fees in accordance with the agreements in the Project Contract. The Project Fee is stated in EUR as a total price (including VAT) and is normally also broken down in the Project Offer for the individual project steps based on hourly rates. Unforeseen additional expenses are invoiced according to the hourly rate agreed in the Project Contract.
5.2 Costs and expenses. In addition to the Project Fee, MODUS OPERANDI shall be entitled to reimbursement of the expenses necessary and proven for the provision of the Project Services, including travel, accommodation and material costs, in accordance with the respective agreements in the Project Contract.
5.3 External service providers. Costs for external service providers are not included in the Project Fee. External service providers conclude their contracts directly with the Client and invoice their services directly to the Client in accordance with their offers/contracts. MODUS OPERANDI undertakes invoice verification for the Client as part of its project coordination. MODUS OPERANDI shall additionally charge the project management/handling flat rate agreed in the Project Contract for the research, selection, coordination and handling of external service providers on the basis of the invoiced amounts of such external service providers.
5.3 Invoices; payment terms; default. All amounts payable under Sections 5.1, 5.2 and 5.3 shall be invoiced to the Client by MODUS OPERANDI in accordance with the agreements made by the Parties. Each invoice shall contain a list and explanation of the activities carried out in the respective invoicing period. Unless otherwise agreed in the Project Contract, invoices shall be paid by the Client within 30 days of receipt of a correct invoice to the payment account specified in the invoice without any deductions. The statutory provisions shall apply to the occurrence and consequences of default in payment (Zahlungsverzug).
5.5 Offsetting. The Client may only set off against claims of MODUS OPERANDI arising from the Project Contract with own claims which are legally established by a final court decision or undisputed.
6.1 Statutory provisions. Unless to the extent otherwise provided for in the Project Contract or these GTC (in particular Section 6.2), the rights of the Parties in the event of a breach of contractual or non-contractual obligations shall be governed by the applicable statutory provisions. This also applies with respect to any warranty rights of the Client.
6.2 Limitation of liability. The following shall apply to MODUS OPERANDI’s liability:
6.3 External service providers. Subject to the cases of liability set out in Section 6.2, MODUS OPERANDI shall not assume any liability or warranty for breaches of obligations by external service providers (see Section5.3) arising from their contracts concluded with the Client.
7.1 Term. The Project Contract shall commence upon its conclusion and shall remain valid until the completion of the Project, unless it is terminated prematurely by one of the Parties in accordance with Section 7.2 or 7.3.
7.2 Ordinary termination. Each Party is entitled to terminate the Project Contract with a notice period of two weeks to the end of the respective calendar month.
7.3 Extraordinary termination. At any time, each Party has the right to extraordinary termination of the Project Contract for good cause [außerordentliche Kündigung aus wichtigem Grund] pursuant to the applicable statutory provisions (particularly Sections 626, 627 German Civil Code [BGB]).
7.4 Written form requirement. Any notice of termination must be made in writing (see Section 1.3).
7.5 Remuneration obligation. Project Services already rendered by MODUS OPERANDI at the time the termination takes effect shall be remunerated in accordance with the agreements made between the Parties, or alternatively in accordance with the applicable statutory provisions. For the avoidance of doubt, MODUS OPERANDI’s right to request the payment of the project management/handling fee for the selection of external service providers (see Section 5.3) shall also exist if a contract with the external service provider is either not concluded by the Client due to the termination or is concluded without further ado of MODUS OPERANDI. Any claims for damages by the Parties resulting from a culpable breach of a contractual obligation by the other Party shall remain unaffected by this.
7.6 Consequences of termination. The Parties shall return or destroy any documents and other work equipment provided to them after termination of the Project Contract. This does not apply to documents and data in respect of which statutory retention obligations must be complied with or for as long as there is another legitimate interest in their retention (e.g. due to ongoing legal disputes). Provisions contained in the Project Contract or these GTC, which must remain in force after the termination of the user contract due to their nature, shall remain effective.
8.1 Choice of law. The Project Contract and these GTC are governed by and construed with the law of the Federal Republic of Germany to the exclusion of international uniform law, particularly the UN Convention on Contracts for the International Sale of Goods (CISG). Indispensable statutory provisions restricting the choice of law or providing for the applicability of mandatory provisions – in particular of the country in which the Client as a consumer has his usual place of residence – shall remain unaffected in their scope of application.
8.2 Arbitration. Information on online dispute resolution in accordance with Article 14 (1) of Regulation (EU) 524/2013 on online dispute resolution for consumer disputes: The EU Commission provides a platform for online dispute resolution (ODR platform) for consumer disputes arising from online sales contracts and online service contracts. This platform is available online at http://ec.europa.eu/consumers/odr/. MODUS OPERANDI does not participate in dispute resolution proceedings before a consumer arbitration board and is not obliged to do so.
8.3 Contract language. The contractual language of the Project Contract and these GTC is German. If other language versions are provided, the German version shall be the authoritative version for interpretation.
8.4 Severability. Should a provision of the Project Contract or these GTC or a provision subsequently included therein be or become invalid or unenforceable in whole or in part, or if there is a gap, this shall not affect the validity of the remaining terms.
