§1 Validity of these General Terms and Conditions
(1) These General Terms and Conditions (hereinafter referred to as "GTC") govern the provision of services on the website https://www.thepromatch.com/de/ (hereinafter referred to as "Website") by consultnet – Management on Demand GmbH (hereinafter referred to as "consultnet") and their use by independent providers of management and consulting services (hereinafter referred to as "Managers"). By registering as a Manager with consultnet, you accept these GTC. The Manager concludes the contract for the use of our services with consultnet – Management on Demand GmbH, Beethovenplatz 2, 80336 Munich.
(2) The relationship between consultnet and the Manager is governed exclusively by these GTC. consultnet does not accept any conditions that deviate from the GTC, unless consultnet has agreed to their validity in writing.
(1) Registration as a Manager is available to anyone who is at least 18 years of age and who works
- • as a freelancer or
- • independently or
- • as a partnership or
- • as part of a corporation,
and is predominantly engaged in project implementation.
Registration as a private person is not permitted.
(2) After registration as a Manager, the user can use the functionalities of the platform. In particular, the user will be granted access to an overview of current project offers and be able to actively search and apply for such offers. In addition, consultnet may contact the Manager directly. For this purpose, a messaging system is available in the protected user area, which consultnet and Managers can use for communication.
(3) Registration as a Manager and the use of the platform are free of charge.
(4) A user name and password must be created during the registration process. When registering, the Manager must provide truthful information, in particular a valid e-mail address. A non-public profile is automatically created by clicking the "Register" button. A confirmation link will be sent by e-mail to the e-mail address provided by the Manager. By clicking on the link, you confirm your profile and activate your use of it.
(5) The user name you have assigned will not be displayed in your public profile later. To identify the Manager, consultnet automatically assigns an individual ID to each profile. Visitors that are not registered with the Website do not have access to your contact data.
(6) Except for the information marked in the consultnet profile as "master data", the Manager must not add to their account any contact data or other information about themselves or third parties that would allow a direct contact or provide any indication of the identity of the Manager or the third party (in particular, the following information may not be stated: name or company name, telephone, fax or mobile number, e-mail address, URLs, articles or publications of any kind). consultnet may but is not obliged to erase or block inadmissible information without notice.
(7) The profile cannot be transferred.
(8) consultnet reserves the right to block Manager profiles if there is a reason to suspect that the Manager violates the provisions of these GTC.
§3 Availability and Liability
(1) consultnet assumes no warranty or liability whatsoever for the uninterrupted availability of the Website or of individual services, and while consultnet will endeavor to keep the Website and the services available to the Manager, the Manager will not be entitled to demand a certain level of availability. consultnet reserves the right to limit or to suspend for a certain period of time the availability of the Website for technical reasons, e.g. for maintenance or repair work.
(2) consultnet shall not be liable for any loss of or damage to data resulting from the use of the Website or from the failure of the Website.
(3) The aforementioned exclusion of liability shall not apply if the loss or damage was caused by consultnet’s intentional or grossly negligent conduct. In case of simple negligence, consultnet shall be liable for any breach of material contractual obligations. Material contractual obligations are obligations which consultnet owes to the Manager according to the meaning and purpose of the contract or the fulfillment of which is essential for the proper performance of the contract and on the fulfillment of which the Manager may regularly rely. In this case (i.e. in case of a slightly negligent violation of material contractual obligations), consultnet's liability shall be limited to the foreseeable damage which is typical for the contract.
(4) Any non-fault liability of consultnet which is mandatory under applicable law, such as the liability under the Product Liability Act or the liability for a statutory guarantee, shall remain unaffected by the above-mentioned limitations of liability. This also applies to consultnet's liability for injury to life, limb or health.
(5) The personal liability of consultnet’s legal representatives and vicarious agents is excluded or limited to the same extent as consultnet’s liability. The limitations of liability shall apply to all types of claims, including those arising under tort law.
§4 Termination of Membership
(1) The Manager may terminate the user relationship in respect of free services (e.g. the profile) at any time without notice by sending a letter or fax or an e-mail to datenschutz [ at ] thepromatch.com. In this case, no surrender of or compensation for any benefits possibly received shall be owed.
(2) Moreover, either party has the right to terminate the contract for good cause.
§5 Obligations of the Manager
(1) The Manager shall provide all information required for registration and this information is to be true and correct. In the event of changes to the registration data and profile information provided upon conclusion of the contract, the Manager must update these immediately.
(2) Any access data for the user account must be treated privately and confidentially, kept carefully and protected against loss or disclosure to third parties. The Manager is not entitled to share the access data for the use of the Website with any other person. The Manager bears full responsibility for any activities based on the use of their access data. consultnet’s liability for any damage resulting from unauthorized access is limited to willful intent or gross negligence or to the other cases stipulated in section 3(3) and (4). If the Manager suspects a misuse of their access data, they are obliged to change their password immediately and to notify consultnet. consultnet reserves the right to block access to the Website in case of any misuse. Furthermore, the Manager agrees to support consultnet, upon request, in clarifying any cases of unauthorized use of the services by third parties through misuse of the Manager’s access or access data by providing information and other necessary or reasonable actions.
(3) In case of a specific project offer made by a consultnet employee, the Manager will maintain their availability commitment for at least 14 days following the initial meeting between the client and the Manager (regardless of whether the initial meeting took place in person or by telephone) and will not accept any other projects during this period, unless the client decides against commissioning consultnet. Otherwise, the Manager shall be liable to consultnet for any resulting damage.
(4) The Manager shall not be obliged to accept any offers from consultnet and shall be entitled to reject individual project offers at any time without giving a reason. The Manager shall also be entitled to work for other clients, without consultnet’s prior consent being required, unless the additional assignment would jeopardize the proper execution of the individual project or in case of a violation of section 7 (Assignment for competitors). Contracts are awarded to the Manager based on separate agreements between consultnet and the Manager (individual project contract).
§6 Implementation of Projects
(1) When carrying out individual projects, the Manager shall not be bound by any constraints regarding time or location. Neither consultnet nor the client has the right to give instructions to the Manager. The Manager is entitled and obliged to execute the individual assignments on their own responsibility. In doing so, however, the Manager shall be obliged to consider the special features and specifications of the assignment and thus of the client. The location and scope of activities are determined by the requirements of the respective assignment. If the Manager cannot fulfill the assignment, they must inform consultnet in good time of the reason for and the probable duration of the hindrance.
(2) The Manager shall carry out each individual project by themselves. Deviations are addressed in an annex to this contract. If and to the extent that the Manager wishes to employ vicarious agents for the execution of the respective assignment, the Manager must obtain consultnet's prior written consent. The Manager shall impose the same confidentiality obligations on their vicarious agents to which the Manager is subject to.
(3) To ensure proper invoicing by consultnet to the client, the Manager shall document the location, content and duration of the activities in a written activity report and make the report available to consultnet on a monthly basis.
(4) Upon completion of an individual project, the Manager will provide consultnet with a final report and will endeavor to obtain a client reference, which the Manager will make available to consultnet and which the Manger may, with consultnet’s consent, use for themselves.
(5) The Manager must inform consultnet immediately and in a timely manner if problems arise during the execution of a project or if facts or situations arise that could possibly lead to a damage for consultnet.
§7 Client Protection
(1) The Manager is familiar with the business model of consultnet as a provider. The Manager is aware of the fact that the contractual relationship between the Manager and consultnet is based on the reliance that the Manager will not bypass consultnet in acquiring or executing assignments with consultnet's clients, either by the Manager themselves or through a third party. The only exceptions to this are assignments that are awarded as a result of the direct approach by a client. In this case, the Manager shall report each assignment to consultnet within five working days and disclose the contractual conditions to consultnet, in particular the daily rate and the duration of the contract. For all other cases, the Manager deliberately accepts the following client protection provisions, in particular the penalty provisions contained in section 7(5) and (6) if the Manager violates any client protection provisions. An acquisition "via third parties" means that the Manager or the Manager’s employees provide information about the assignment to a third party and the third party tries to obtain the assignment or even receives the award. The Manager is responsible for ensuring that the Manager's employees also strictly comply with the provisions of this section 7(1).
(2) The Manager undertakes to refrain from contacting consultnet's clients themselves, through the Manager's employees or through third parties, and from soliciting or accepting any assignment on their own, through the Manager's employees or through third parties during the acquisition phase of an individual project. The same applies to a period of 12 months after the failure of acquisition efforts for an individual project or after the termination of an individual project, regardless of the reason for which the project failed or was terminated. The Manager shall be responsible for ensuring that the Manager's employees also strictly comply with the provisions of this section 7(2).
(3) The Manager undertakes vis-a-vis consultnet that they will ensure that both the Manager and the Manager’s employees will refrain, during the term of an individual project and for a period of 12 months after completion of a project, from contacting consultnet’s client for business purposes, either themselves or through third parties and/or from seeking assignments from the client directly and without the involvement of consultnet and/or accepting any assignments from the client, if and insofar as
a. the subject matter of such assignments from the client are services which are covered by a main assignment placed by the client with consultnet or by a corresponding offer from consultnet to obtain such assignment,
b. these are follow-up assignments which, in terms of content or execution, are linked to assignments which consultnet has already carried out for the client (whereby a follow-up assignment is assumed in particular if a client places another assignment within 12 months even if there is no close factual connection), or
c. these are projects which have been or will be identified from ongoing project work or in the context of an ongoing project.
(4) The Manager agrees to pay consultnet a contractual penalty in the amount of € 20,000 for each case in which the Manager breaches their obligations under section 7(2) or (3). In the event of an ongoing breach, the contractual penalty shall be newly imposed for each month or part thereof. The contractual penalty is restricted to an amount of €100,000.00, cumulative for the entire term of contract. consultnet's right to assert any additional damage shall remain unaffected thereby. In this case, the contractual penalty shall be set off against the claims for damages.
(5) If a contract is concluded between the Manager or a company in which the Manager has a majority shareholding or the bodies or employees of any of the aforementioned on the one hand, and the client or a company affiliated with the client on the other hand, without consultnet’s consent within 12 months after the beginning of the acquisition of an individual contract, consultnet shall be entitled to demand compensation from the Manager in the amount of 25% of the respective contract value in addition to the contractual penalty pursuant to section 7(4).
(6) Clients with whom the Manager already has a business relationship at the time the individual assignment is signed are excluded from the provisions in section 7(1) to (5). These shall be identified by the Manager and, if requested, listed in an annex to the individual assignment.
(7) Payment of a contractual penalty or compensation in accordance with the above paragraphs does not release the Manager from the obligation to remedy the situation that is in breach of contract.
(8) Should individual provisions of this section 7 be or become invalid, the validity of the remaining provisions of this section 7 and the entire GTC shall not be affected. The invalid provision will be replaced by a legally permissible provision agreed upon by the parties that comes as close as possible to the meaning and purpose of the invalid provision.
§8 Competition (Direct Employment with Companies during the Individual Project and in case of Failure of the Project)
(1) During the execution of an individual project for a client, the Manager undertakes not to work simultaneously for a competitor of that client with the same or similar tasks. The Manager warrants that his vicarious agents will not act in such a manner, either.
(2) The Manager shall upon first request indemnify consultnet from and against all claims of the client based on a breach of the non-competition obligation pursuant to section 8(1).
§9 Duty of Confidentiality, Disclosure of Information to Third Parties, Handling of Personal Data
(1) The Manager undertakes to maintain strict confidentiality on all operational procedures inside and outside of consultnet during the use of the services offered by consultnet, in particular during a joint acquisition phase and for a period of two years after its completion. This particularly applies to business and trade secrets.
"Confidential information" is, without limitation, information about current or planned projects, customer data, internal business processes, sales channels, internal calculations, etc. It also includes the Manager's own observations, experiences and results. The obligation of secrecy also applies to all above-mentioned confidential information or other procedures and other business-relevant information concerning consultnet, clients of consultnet or potential clients of consultnet.
The duty of confidentiality does not apply:
a. insofar as this contract expressly authorizes the Manager to disclose such information or consultnet expressly agrees to such disclosure in writing;
b. to information that is generally accessible and known at the time of disclosure, except in the case of the transmission of address data;
c. to information that has been compiled independently without using confidential Information of the other party;
d. insofar as the Manager is obliged to disclose the information for legal reasons or due to official or court orders;
e. if the disclosure of the confidential information is obvious and clearly not disadvantageous to consultnet.
In case of doubt, the Manager must obtain consultnet’s consent before disclosing the information.
(2) The Manager shall not process (i.e. store, transmit, modify or erase), disclose, make available or otherwise use protected personal data without authorization for any purpose other than providing the relevant legitimate services of consultnet. This obligation shall survive the termination of the contract for an unlimited period of time.
(3) The Manager undertakes to refrain from exploiting or using business-relevant information acquired in the course of individual assignments.
(4) The Manager shall impose the obligations stipulated in section 9(1) to (3) on their vicarious agents. Section 278 of the German Civil Code remains unaffected.
(5) If the Manager breaches an obligation arising from section 9(1) to (4), section 7(4) and (7) shall apply mutatis mutandis.
(6) Should individual provisions of this section 9 be or become invalid, the validity of the remaining provisions of this section 9 and of the entire contract shall not be affected. The invalid provision will be replaced by a legally permissible provision agreed upon by the parties that comes as close as possible to the meaning and purpose of the invalid provision.
§10 Documents and Obligation to Surrender
(1) Business and operational documents of all kinds, including personal records on matters relating to individual assignments, may only be prepared for business purposes and must be kept carefully. The Manager must ensure that third parties cannot gain access thereto. Copies or duplicates for purposes other than those of this contract are prohibited.
(2) Upon termination of this contract or in the event of an exemption from the agreed service, the Manager shall immediately return to consultnet all documents, including any copies and transcripts, as well as all items made available to the Manager by consultnet. At consultnet's request, the Manager will expressly guarantee that the aforementioned items have been handed over in full and that the Manager does not retain any copies or duplicates. The same obligation applies to documents, data and items which are owned by the client.
(3) The Manager has no right of retention of documents etc.
§11 Rights of Use, Consent to Data Transfer
(1) Whenever the Manager adds own content, such as text or image material to the Manager's profile, posts such content on the Website (e.g. in a forum or blog) or makes use of interactive offers on the Website to exchange information with consultnet or other users, the Manager grants to consultnet, when sharing such content, the irrevocable, non-exclusive, worldwide, content-unlimited and free-of-charge right to such content, limited to the duration of this agreement, either by itself or through a third party, to publish such content of the Manager on the Website, to make the content available to a third party for private use, to transmit the content via electronic communications networks (such as the internet or mobile networks) to any stationary and mobile end device on demand or as a push function - including for download -, to reproduce such content for the above purposes and to edit its form and design (but not its content).
(2) The Manager is only entitled to post content which originates from the Manager or for which the Manager has obtained the necessary rights. The Manager guarantees that any content that the Manager posts is free from third-party rights (in particular copyrights and trademark rights pertaining to text and image contributions and personal rights of individuals depicted or represented in any other form), which are contrary to the use of the content described in section 11(1). The Manager shall indemnify consultnet from and against any and all third-party claims, which are asserted against consultnet or its vicarious agents due to the content (comments, contributions to a discussion, in any form such as text or pictures, etc.).
(3) The Manager shall enter all data so that consultnet may pass the data on to third parties within the platform or in any other way in order to procure assignments. In this respect, the Manager also consents to the disclosure of the data to third parties unknown to the Manager.
(4) consultnet uses e-mails and automated system notifications to inform the Manager about interesting project offers, new services of the platform or other information directly related to the Manager’s work as an interim manager. Any advertising beyond this - especially from third parties - will not be sent to the Manager. By registering, the Manager expressly grants consultnet permission to send these e-mails and notifications to him without special permission in individual cases. The Manager can change the receipt of such e-mails at any time via the personal settings.
§12 Trademark Tights, Copyrights
(1) The use of consultnet's logos and other marks is only permitted with the prior written consent of consultnet.
(2) None of the contents of the Website may be copied, sold, loaned or otherwise reproduced or distributed without the explicit written consent of consultnet.
(3) Any unauthorized reproduction or distribution of individual contents or complete pages outside of these terms or any legal exceptions is prohibited.
§13 Data Protection
§14 Changes to the Services and GTC
(1) Changes to the Services
- consultnet reserves the right to change the services offered on the Website or to offer different services, unless this is unreasonable for the user.
- consultnet also reserves the right to change the services offered on the Website or to offer different services,
• to the extent that consultnet is obliged to ensure that the services offered by consultnet comply with the law applicable to the services, in particular if the applicable law changes;
• to the extent this is necessary for consultnet to comply with a court judgment or a decision of the authorities consultnet is subject to;
• insofar as the respective change is necessary to close existing security gaps;
• if the change is only beneficial to the user; or
• if the change is of a purely technical or procedural nature and does not have a significant impact on the user.
- Changes which only have insignificant impact on the functionalities of the Website do not constitute changes in performance within the meaning of this clause. This applies in particular to changes of a purely graphical nature and changes in the arrangement of functions.
(2) Amendments of the GTC
- consultnet reserves the right to amend these GTC at any time without stating reasons, unless this is unreasonable for the user. consultnet will inform the user about any changes to the GTC in due time and in advance. To the extent the user fails to object in writing to such changes of these present GTC within six (6) weeks after receipt of such notice, such changed GTC shall be deemed to be accepted by the user. To the extent necessary, consultnet shall inform the user of the user’s right to object to such changes and of the meaning of the period of time for objections, together with the information on the changes to these present GTC.
- consultnet also reserves the right to amend the GTC,
• if the change is only beneficial to the user;
• if the change is of a purely technical or procedural nature, unless they have a significant impact on the user;
• to the extent that consultnet is obliged to ensure that the GTC comply with applicable law, in particular if the applicable law changes;
• to the extent this is necessary for consultnet to comply with a court judgment or a decision of the authorities consultnet is subject to; or
• to the extent that consultnet introduces additional, completely new services or service elements that require a service description in the GTC, unless the previous user relationship is changed to the disadvantage of the user.
consultnet will report such changes to the GTC, for example on the Website.
(3) The user's right of termination according to section 4 remains unaffected by any changes to the services or GTC according to this provision.
§15 Final Provisions
(1) The law of the Federal Republic of Germany shall apply.
(2) Place of jurisdiction shall be Munich, Germany, if the Manager is a merchant or does not have a residence in Germany and there is no other exclusive place of jurisdiction.
(3) Should individual provisions of these GTC be invalid in whole or in part, this shall not affect the validity of the remaining provisions.