Terms and Conditions

1. Definitions

• "Agreement" means the mutually agreed-upon Engagement Agreement or Statement of Work (SOW) entered into between Orca and the Client, incorporating these Terms and Conditions by reference.

• "Client" means the individual or entity engaging Orca for the provision of Consulting Services.

• "Consulting Services" means the professional consulting services to be provided by Orca to the Client as described in the Agreement.

• "Orca" means [Your Full Company Name], a consultancy firm based in Germany, with its registered address at [Your Full Company Address].

• "Intellectual Property Rights" means all patents, rights to inventions, copyright and related rights, trademarks, service marks, trade names,1 domain names, rights in get-up,2 rights to goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights,3 rights in confidential information (including know-how and trade secrets), and any other intellectual property rights, in each case whether registered or unregistered and including all applications4 for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in5 any part of the world.

• "Confidential Information" means any information disclosed by one party to the other, whether orally or in writing, that is designated as confidential or that reasonably should be understood6 to be confidential given the nature of the information and the circumstances of disclosure.7

2. Agreement Formation

The Agreement between Orca and the Client shall be formed when the Client accepts Orca's proposal or signs the Engagement Agreement or SOW, which incorporates these Terms and Conditions.

3. Provision of Consulting Services

• Orca will provide the Consulting Services to the Client with reasonable skill and care, in accordance with the terms of the Agreement.

• Orca will use personnel who possess the necessary skills, qualifications, and experience to deliver the Consulting Services.

• Orca will use reasonable efforts to meet any agreed-upon timelines, but these are estimates and are not guaranteed unless explicitly stated in the Agreement.

• The Client acknowledges that the success of the Consulting Services depends on the Client's cooperation and the provision of accurate and timely information.

4. Client Responsibilities

• The Client shall provide Orca with all necessary information, access to personnel, and resources as reasonably required for the provision of the Consulting Services.

• The Client shall ensure the accuracy and completeness of all information provided to Orca.

• The Client shall be responsible for any decisions or actions taken based on Orca's advice or recommendations.

5. Fees and Payment

• The fees for the Consulting Services shall be as set out in the Agreement.

• Unless otherwise stated in the Agreement, Orca's fees are exclusive of any applicable value-added tax (VAT) or other taxes, which shall be payable by the Client in addition to the fees.

• Orca shall invoice the Client in accordance with the schedule specified in the Agreement.

• The Client shall pay all invoices within the payment terms specified in the Agreement. Late payments may be subject to interest at the statutory rate applicable in Germany.

• The Client shall be responsible for all reasonable travel and other expenses incurred by Orca's personnel in connection with the provision of the Consulting Services, as agreed upon in advance.

6. Intellectual Property Rights

• Unless otherwise expressly agreed in writing in the Agreement, all Intellectual Property Rights created or developed by Orca in the course of providing the Consulting Services shall remain the sole and exclusive property of Orca.

• Orca grants the Client a non-exclusive, non-transferable license to use the deliverables provided as part of the Consulting Services solely for the Client's internal business purposes, subject to the Client's full payment of all fees due under the Agreement.

• Any pre-existing Intellectual Property Rights owned by either party shall remain the property of that party.

7. Confidentiality

• Each party agrees to keep the other party's Confidential Information confidential and not to disclose it to any third party8 without the prior written consent of the disclosing party, except as required by law.

• The obligations of confidentiality9 shall survive the termination of the Agreement.

• The receiving party shall use the same degree of care that it uses to protect its own confidential information of a similar10 nature, but in no event less than reasonable care.

• The11 obligations of confidentiality shall not apply to information that is: (a) publicly known; (b) already known to the receiving party; (c) rightfully received from a third party without any obligation of confidentiality; or (d) required to be disclosed by law or a court order.

8. Data Protection

• Each party shall comply with its obligations under applicable data protection laws, including the General Data Protection Regulation (GDPR).

• To the extent that Orca processes any personal data on behalf of the Client, the parties shall enter into a separate Data Processing Agreement in accordance with Article 28 of the GDPR.

9. Warranty and Disclaimer

• Orca warrants that it will provide the Consulting Services with reasonable skill and care.

• Except as expressly provided in these Terms and Conditions, Orca makes no other warranties, express or implied, including any warranties of merchantability or fitness for a particular purpose.

• The12 Client acknowledges that consulting services involve professional opinions and guidance, and Orca does not guarantee specific business outcomes or results from the implementation of its recommendations.

10. Limitation of Liability

• To the maximum extent permitted by applicable law, Orca's total aggregate liability to the Client arising out of or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise,13 shall be limited to the total fees paid by the Client to Orca under the Agreement.

• Neither party shall be liable to the other for any indirect, incidental, special, consequential, or punitive damages, including loss of profits,14 loss of business, loss of goodwill, or loss of data, arising out of or in connection with the Agreement, even if advised of the possibility of such damages.

• The limitations of liability set forth in this clause shall not apply to liability for death or personal injury caused by negligence, or for fraud or fraudulent misrepresentation, or any other liability15 that cannot be excluded or limited under applicable16 law.

11. Term and Termination

• The Agreement shall commence on the effective date specified in the Agreement and shall continue for the term specified therein, unless terminated earlier in accordance with this clause.

• Either party may terminate the Agreement by providing written notice to the other party if the other party commits a material breach of the Agreement and fails to remedy such breach within [Number] days after receiving written notice of the breach.

• Orca may terminate the Agreement immediately by providing written notice to the Client if the Client fails to pay any undisputed fees when due.

• Either party may terminate the Agreement immediately by providing written notice to the other party if the other party becomes insolvent or bankrupt.

• Upon termination of the Agreement, the Client shall pay Orca for all Consulting Services performed and expenses incurred up to the date of termination.

12. Governing Law and Jurisdiction

• The Agreement and any disputes arising out of or in connection with it shall be governed by and construed in accordance with17 the laws of Germany, excluding its conflict of laws rules.

• The courts of [Specify relevant court location in Germany, e.g., Frankfurt am Main] shall have exclusive jurisdiction to settle any dispute arising out of or in connection with the Agreement.

13. Entire Agreement

The Agreement, including these Terms and Conditions and any appendices or exhibits, constitutes the entire agreement between the parties and supersedes all prior or contemporaneous communications and proposals, whether oral or written, relating to the18 subject matter hereof.

14. Amendments

No amendment or modification of the Agreement shall be effective unless it is in writing and signed by authorized representatives of both parties.

15. Notices

Any notice given under the Agreement shall be in writing and shall be deemed to have been duly received when delivered personally, sent by registered post, or sent by email (with confirmation of receipt) to the address of the other party specified in the Agreement.

16. Severability

If any provision of these Terms and Conditions is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining19 provisions shall not in any way be affected or impaired.20

17. Force Majeure

Neither party shall be liable for any delay in or failure to perform its obligations under the Agreement due to any cause beyond its reasonable control, including but not limited to acts of God, war, riots, fire, flood, strikes, lockouts, or other industrial disputes, provided that the affected party promptly notifies the other party of such event and uses reasonable efforts to mitigate its effects.

18. Assignment

Neither party shall assign, transfer, or subcontract any of its rights or obligations under the Agreement without the prior written consent of the other party, except21 that Orca may subcontract certain aspects of the Consulting Services to qualified personnel.

19. No Third-Party Beneficiaries

The Agreement is for the sole benefit of the parties hereto and their respective permitted successors and assigns and nothing herein, express or implied, is intended to or shall confer upon any22 other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms and Conditions.23

20. Survival

Clauses relating to Intellectual Property Rights, Confidentiality, Data Protection, Limitation of Liability, Governing Law and Jurisdiction, and any other provisions that by their nature should survive termination, shall survive the termination of the24 Agreement.

Key Considerations:

• Legal Review: Absolutely crucial. A German lawyer specializing in commercial and contract law must review and tailor this to your specific business practices and legal requirements.

• Specificity in Agreement: Ensure your individual Engagement Agreements or SOWs clearly reference these Terms and Conditions and provide specific details about the project.

• Liability Limits: Carefully consider and discuss with your lawyer appropriate limitations of liability.

• Intellectual Property: Clearly define ownership of IP created during the engagement.

• Data Processing Agreement: If you will be processing personal data on behalf of your clients, ensure you have a separate Data Processing Agreement that complies with GDPR.

• Governing Law and Jurisdiction: Specifying German law and a specific court in Germany provides clarity for dispute resolution.

• VAT: Ensure your pricing and invoicing clearly address VAT.