Terms & Conditions - Independent Contractors
General terms and conditions for Independent Contractors
as of December 2nd, 2021
These general terms and conditions regulate the activity as an Independent Contractor (“Independent Contractor”) on behalf of DIGITALCOOP based in Berlin (“DIGITALCOOP”) for the respective client (the “client”). The general terms and conditions are supplemented by the individual project-related conditions in the so-called Project Contract. In the case of contradicting content, the conditions in the Project Contract have priority. The inclusion of any terms and conditions of the Independent Contractor is expressly contradicted.
The Independent Contractor is a fully responsible and independent provider of his/her services. He/she can freely fulfil his/her services in terms of time and place within the project requirements of the client and is not bound by instructions in this regard. The Independent Contractor has to protect himself against his/her risks with professional liability insurance.
It is up to the Independent Contractor to register his/her trade, obtain any permits and pay taxes to the tax office and social security agency, even if his/her activity is to be qualified as an employee-like self-employed person. The parties agree that the Independent Contractor is self-employed and that there is no employment relationship with DIGITALCOOP or with DIGITALCOOP's clients. The Independent Contractor must ensure that no circumstances arise that would qualify him as an employee-like self-employed person within the meaning of Section 2 No. 9 SGB VI (or local equivalent). The Independent Contractor must refrain from giving third parties the impression of an employment relationship with DIGITALCOOP or the clients of DIGITALCOOP and, in cases of doubt, is required to actively point out his/her independence. The Independent Contractor must inform DIGITALCOOP immediately about circumstances that are relevant for his/her classification as an employee-like self-employed person. Should there nevertheless be a status determination procedure under social security law, the Independent Contractor is obliged to prove to DIGITALCOOP that he/she is self-employed by submitting available and suitable documents and to notify DIGITALCOOP of this immediately (via email or telephone call) at the start of this procedure.
B. Consulting service
During the projects, the Independent Contractor will:
• Exercise the advisory services with due diligence, skill and the use of all your abilities with the aim of completely satisfying the client.
• In the case of a day-based consultation, take the agreed hours per day as a guide and spend the time necessary to bring the project to a successful conclusion.
• In the case of milestone or project-related advice, ensure that the milestones are achieved by the deadlines set and are carried out to the satisfaction of the client.
If the Independent Contractor is unable to provide the service due to illness or injury, he will immediately inform the client and DIGITALCOOP of this fact. If no project work is carried out, no fee is payable.
C. Conclusion of a contract
The client informs DIGITALCOOP about project vacancies. DIGITALCOOP then looks for suitable Independent Contractors based on the Independent Contractor profiles and asks them to apply for the respective project. In such an application, the Independent Contractor instructs DIGITALCOOP to negotiate a consultancy contract with the client. For this, DIGITALCOOP needs the following information and specifications:
• the identity of the advisor
• the experience, training, qualifications of the Independent Contractor
• the minimum hourly rate
The client can, if necessary after a personal conversation (by telephone or in person) with the Independent Contractor, accept the service offer from DIGITALCOOP within five days and thereby conclude a consultancy contract, provided that the Independent Contractor also agrees to the service offer within this period of five days after the conversation has been carried out . If the client makes a counter offer to DIGITALCOOP, DIGITALCOOP checks it for the specifications or consults the Independent Contractor. A consultancy contract is concluded when DIGITALCOOP accepts the counter offer, again with the consent of the Independent Contractor within this period of five days, within five days. The Independent Contractor's consent is legally binding. If the Independent Contractor withdraws his/her consent to the project after the initial consent of all parties and in compliance with all parameters of the service offer (such as start date, Independent Contractor hourly rate or content), DIGITALCOOP reserves the right to claim damages in the amount of the lost project revenue. The fee equals 10% of the overall project value.
D. Prohibition of Circumvention
The Independent Contractor may as soon as he has been proposed by DIGITALCOOP for a specific project to the client and up to 6 months after the end of the project contract (as specified in paragraph J), an inquiry or an offer from a client that can be traced back directly or indirectly to his/her user account or the commissioning of DIGITALCOOP is, do not bypass DIGITALCOOP or take it as an occasion for further negotiations for a service or permanent position with the client or with the contractors of clients. Otherwise he has to pay a contractual penalty in the amount of twice the lost, customary total fee for the respective project / permanent position (plus sales tax, if applicable).
During the project contract and up to 6 months after the end of the contract, the Independent Contractor is obliged to inform DIGITALCOOP about all contract initiation and conclusion of contracts that can be traced back directly or indirectly to his/her user account or the commissioning of DIGITALCOOP. This includes the remuneration details of contract offers and contracts of all initial, repeated and continuous consultations as well as permanent positions as employees with clients or contractors involved in the placement of clients.
If a circumvention situation arises, DIGITALCOOP reserves the right to exclude the Independent Contractor from the DIGITALCOOP service while pursuing his/her financial claims.
E. Fee and billing
DIGITALCOOP owes the Independent Contractor a consulting fee for his/her services: These are his/her remuneration and, if applicable, expenses (in the case of an hourly rate, excluding travel expenses, specified in the respective service offer). After DIGITALCOOP has received the remuneration from the client, DIGITALCOOP pays the fee (if applicable and if agreed, including travel expenses) to the Independent Contractor in accordance with the specifications specified in the next paragraph. If the client legally draws a discount, this discount regulation will also be applied to the payment to the Independent Contractor (and this will also be recorded accordingly in the range of services). DIGITALCOOP bills the client for the resulting amount every month. The invoice amount is due after a further 5 days. DIGITALCOOP accepts complaints from the client for the Independent Contractor.
DIGITALCOOP only pays the Independent Contractor when the corresponding invoice amount has been paid by the client, whereby payment of the remuneration or the agreed fee to the Independent Contractor is due within five bank working days (Berlin) after receipt of the money by DIGITALCOOP.
DIGITALCOOP reminds the Independent Contractor about outstanding claims. If the client does not pay up to 3 months (or 90 days) after the due date, the Independent Contractor can assert the claim in the amount of the consulting costs directly to the client in writing, even without DIGITALCOOP. The Independent Contractor bears the risk of failure.
F. Permanent employment
If the client wishes to permanently take on a Independent Contractor previously presented by DIGITALCOOP in a permanent position during the protection phase, the client must pay DIGITALCOOP a commission of 10% of the gross annual salary of the Independent Contractor (plus statutory VAT if applicable) within 28 days of the start of the permanent position ) numbers. If there is a variable salary component, the target bonus of the first year is added to the gross annual salary of the Independent Contractor when calculating the commission.
G. Liability and Indemnification
The Independent Contractor releases DIGITALCOOP from all claims that are asserted against DIGITALCOOP by third parties due to the consultancy service provided by the Independent Contractor. The Independent Contractor assumes all reasonable costs incurred by DIGITALCOOP, including the reimbursement of costs of necessary legal representation.
Whether DIGITALCOOP, the client and the Independent Contractor have an employment relationship that is subject to social insurance contributions depends on the actual circumstances of the activity. DIGITALCOOP is therefore not responsible for the civil, public or criminal consequences of such employment.
Liability on the part of DIGITALCOOP and its legal representatives and vicarious agents for damage caused by or in connection with the exercise of obligations under this contract is excluded. This limitation of liability does not apply to damage resulting from injury to life, limb or health that is based on an intentional or negligent breach of duty or otherwise on willful or negligent behavior on the part of DIGITALCOOP or one of its legal representatives or vicarious agents;
a) which are based on an intentional or grossly negligent breach of duty or otherwise on willful or grossly negligent behavior by DIGITALCOOP or one of its legal representatives or vicarious agents;
b) which are based on a breach of duty by DIGITALCOOP or one of its legal representatives and vicarious agents with regard to essential contractual rights and obligations that are applicable to the
Proper execution of the contract are essential and thereby the achievement of the purpose of the contract is endangered (cardinal obligations).
The liability of DIGITALCOOP and its legal representatives and vicarious agents under the Product Liability Act remains unaffected by the limitation of liability.
The Independent Contractor grants DIGITALCOOP in full all existing and future rights to intellectual property and materials that have been developed in the course of the project, transferable to the client.
The Independent Contractor guarantees DIGITALCOOP that:
• he will not pass on the rights to the ownership of the results to third parties, neither in the past nor in the future,
• the works are his/her own creation and have not been copied by third parties,
• as far as he is aware that the use of the works does not violate the rights of third parties,
• Other than the fees set out in this Agreement, no further fees or other compensation are provided for the full transfer of rights
The Independent Contractor acknowledges that he will have access to "confidential information" in the course of the project.
"Confidential information" in this context is all information that is made available to the DIGITALCOOP Independent Contractor or the client (whether verbally, electronically, in writing or in any other form). Confidential information includes, in particular, information on the project (such as content, goal setting, approach), the project briefing, tasks that the Independent Contractor should perform, content on the contractual relationship between the Independent Contractor and the client, the client strategy or the strategy of the client (s), methodologies, processes, analyzes and all information on recruitment, payment and the integration of external employees. Furthermore, confidential information includes the identity of the client and his/her client and all other information about the client and the client of the client, unless this information is publicly available. In particular, the fact that the client is looking for Independent Contractors and that DIGITALCOOP has been commissioned by the client is confidential.
If the Independent Contractor is unsure which information is not "confidential information" within the meaning of this contract, he/she must contact the client and obtain his/her binding assessment.
The Independent Contractor may under no circumstances, during or after the implementation of the project, disclose confidential information to third parties. In addition, at any time during the project, the Independent Contractor will return to the client, upon request of the client or DIGITALCOOP, all materials with confidential information in his possession.
Furthermore, the Independent Contractor undertakes to obtain the prior written consent of the client in order to accept orders for a competitor of the client in the direct business area of the client during the project and within the first 12 months after the end of a project, either personally or through or through third parties to compete with the client itself. Direct competitor in this particular case are companies offering facial yoga subscription services.
DIGITALCOOP may provide unchecked ratings of the Independent Contractor for his performance from former clients for future clients.
J. Term and Termination
The project begins with the start date agreed in the service offer. The project lasts until one of the following events occurs earlier:
• the agreed end date (including the respective changed end date, which can or has been adapted with the consent of the Independent Contractor and client, unless stated differently in the Project Contract)
• Termination by the client or Independent Contractor in writing and without a reason with a notice period of one month to the end of a calendar month. Travel bookings or cancellation costs that can no longer be cancelled are to be borne by the client on proof of the Independent Contractor
In addition, the parties can terminate this agreement in writing with immediate effect in the event of a material breach of duty by the other party. This includes any behavior that could have a negative impact on one's own reputation, in particular:
• a party seriously or persistently violates contractual terms
• a party is being prosecuted or convicted of a crime
• The Independent Contractor does not meet the minimum requirements for professional service provision.
Upon completion of the project, the Independent Contractor is obliged to do so immediately
• Hand over all relevant property and confidential information of the client to the client and
• irretrievably delete all information relating to the exact content of the project (whether in writing, on magnetic or optical storage media).
K. Applicable Law & Jurisdiction
The contractual relationship is subject to the law of the Federal Republic of Germany to the exclusion of the UN Sales Convention.
The place of jurisdiction is Berlin.
L. Changes to the contract and ancillary agreements
These terms and conditions and their appendices are deemed to be the entire agreement between the parties and replace all previous written and oral drafts, contracts, agreements and understandings between them.
DIGITALCOOP reserves the right to adapt these conditions. The Independent Contractor agrees to the changes by continuing to use the DIGITALCOOP service. If there is a significant change with significant effects, DIGITALCOOP must announce it within a reasonable period of time.
M. Severability Clause
Should any of the above provisions be legally ineffective, this does not result in the ineffectiveness of the remaining provisions. Rather, the ineffective provision is to be replaced by an effective provision that corresponds to its economic purpose.