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Conditions of consultation.

Preliminaries
The companies of the THOMSEN GROUP International Strategy Consultants, in short TGISC®, as also the THOMSEN GROUP Resulting GmbH TGISC, Holstenplatz 20, 22765 Hamburg and the THOMSEN GROUP Strategy GmbH TGISC, Holstenplatz 20, 22765 Hamburg (hereinafter uniformly TGISC®), perform for their national and international clients complex and highly individualized services of strategic consultation. In order to promote optimal teamwork between the TGISC® International Strategy Consultants Estd. 1984, also referred to as TGISC®, and the client with the goal of mutual success, certain routinely occurring questions have been clarified in the forefront as conditions of consultation in the form of general terms and conditions.
 
§ 1 Scope and contract conclusion
The following conditions of consultation apply for all agreements, orders, assignments, deliveries and services between the client and the respective company of the TGISC® with which the client concludes a contract. They are a component of the total business relationship. Insofar as the client uses general terms and conditions, the general terms and conditions of the TGISC® take precedent, unless the parties have agreed differently in writing. Verbal side agreements, consents and contractual changes are only effective if the TGISC® confirms them in writing. This also applies for a waiver of this form requirement. A clarification sent by e-mail satisfies the written form.
 
Offers of the TGISC® are subject to change.
 
§ 2 Secrecy obligation
The TGISC® is obligated to handle all business secrets which occur as part of the collaboration with the client in a confidential manner. This obligation continues after expiration of the contract, further for the case that no contract is signed. The client consents to the forwarding of information including business secrets insofar as these are necessary for collaboration with third parties. The consent is valid independently of whether the client or the TGISC® has hired the third party or should hire it. Upon request of the client, the TGISC® will make the collaboration with third parties dependent on the issuance of a special clarification about its confidentiality obligation by the respective third party.
 
The client is obligated to confidentially handle all business secrets disclosed to him by the TGISC® including such contents and strategies which are shared with the client as a presentation of the work results of the TGISC® (also regarding preliminary work, considerations, concepts and other preparations). The work results of the TGISC® may be used, transformed, given to third parties or otherwise disposed of only in the framework of the contractual purpose. In case of doubt, the explicit consent of the TGISC® should be obtained.
 
§ 3 Signature
The TGISC® is authorized to appropriately sign work results created by it and to indicate the support of the client in its communication. This does not apply if the contractual parties exclude this right in writing.
 
§ 4 Scope of services
The scope of services to be performed by the TGISC® is geared toward the individual agreements.

Unless specifically or otherwise agreed, for all implementation services (regardless whether performed by TGISC®, the client or third parties) a so-called innowait overall strategy is the basis for all subsequent services. The agreed compensation for the innowait overall strategy, regardless whether in payment for virtual outlay or a combination of fee in recognition of services and success fee, does not include so-called implementation services. The above implementation services are based on TGISC®’s belief to prove the success of the proposed strategies, concepts and measures in practice. Refer to §9 Compensation for further details.

A competition check or a check of the protection or registration capability of protection rights will be assumed by the TGISC® only by reason of a special agreement with the client. In the absence of a special agreement, the client will check the work results of the TGISC® before their application in regard to the legal (competitive) authorization and if applicable the protection and registration capability of protection rights. Insofar as the client has doubts about the authorization, the protection or registration capability, he will inform the TGISC® about this without delay. In this case the contractual parties will jointly discuss the further approach.
 
The TGISC® is not obligated to hand over created files, drafts, concepts or similar to the client unless the handover was explicitly agreed upon. Upon handover the client is not authorized to change the obtained files unless the TGISC® has explicitly agreed to the change. For the remainder a handover obligation only exists insofar as the handover of the respective work material is necessary for the execution of the contract.
 
§ 5 Order development and participation obligation of the client
The client is obligated to inform the TGISC® about type, scope, and time sequence of the services given in the order in a timely manner, as well as to provide all information and documentation on time and at no cost which is necessary for the appropriate fulfillment of the order. Insofar as these documents contain special levels of confidentiality which must be observed, the client will inform the TGISC®. In the realization phase, the following particularly applies for the Presence-P, Placement-P and People-P: Insofar as the contractual parties do not explicitly agree to something different, the client will give the TGISC® for this purpose exclusively documents (photos, models, and other documents) which have been approved for publishing and copying. Before copies are made, the TGISC® will provide the client with a sample for proofreading. The copying will occur only after the explicit consent of the client has been given. The TGISC® monitors the appropriate execution of assigned measures.
 
The client provides the TGISC®, independent of the contact partners on the board of directors or in management, at least one knowledgeable contact partner, who is equipped with the opportunities and authorizations (procurement of documents or information, approvals, etc.) for the smooth execution. The contact partner must either be able to make the necessary decisions himself or bring them about in a timely manner.
 
If protocols or order confirmations are prepared and provided to the other contractual partner, then these are binding for further project processing, insofar as the contractual partner has agreed or has not raised objections within eight days. Insofar as the client knows or should know that the TGISC® has already begun with the performance of the respective service, the objection must be made without delay.
 
The client will check the work results which have been delivered by the TGISC®. For all services of the TGISC®, § 377 of the Commercial Code (HGB) applies.

In the realization phase, the following particularly applies for the Presence-P, Placement-P and People-P:
Insofar as the client does not explicitly insist on being present for photo, radio, television or other productions and to make management decisions, these decisions are solely incumbent on the TGISC®. Subsequent changes must be specially reimbursed.
 
The client releases the TGISC® from possible claims which third parties enforce through the client against the TGISC® as a consequence of a change of contract.
 
§ 6 Employment and offers of third parties
The TGISC® is authorized to either perform the assigned work itself or to assign the execution of the work to suitable third parties. Insofar as the TGISC® obtains external bids for the order development or prepares or carries out a call for tenders, but the client gives the order elsewhere, then the TGISC® will charge a special fee for the receipt of bids, which is measured on the basis of the actual time and monetary expenditures according to the fee list of the TGISC®. Should an external order be developed by the TGISC®, then the TGISC® is authorized to charge a special handling fee, the amount of which is computed according to the fee list of the TGISC®.
 
Single orders up to 5,000 € as well as orders within ongoing work require the prior obtainment of cost estimates and no approval of the client.
 
The client is authorized to employ third parties in the framework of the tasks supported by the TGISC® for the client only with the explicit consent of the TGISC®.
 
§ 7 Delivery
If nothing else has been explicitly agreed to in a single case, the delivery times and dates given by the TGISC® are non-binding service time regulations. Bindingly agreed delivery times and dates lose their binding character if the client does not fulfill his participation obligation (procurement of documents or supply of information, approvals, etc.) as agreed on, in particular not in a timely manner. Delivery deadlines and delivery dates are extended in the case of unforeseeable obstacles which are beyond the control of the TGISC® for the duration of the existence of the obstacles, insofar as such obstacles significantly influence the delivery. The TGISC® will inform the client about the beginning and end of such obstacles without delay. Insofar as an extension of the delivery deadline or a postponement of the delivery date is unreasonable for the client, the client can withdraw from the contract. In case of doubt, an actual or predicted delay of more than eight weeks is considered unreasonable unless the delay is caused by the client.
 
Insofar as the TGISC® is obligated to transfer products, documents, data carriers or other work materials, it retains ownership of these until the complete payment of all fee obligations from the business relationship. The client will inform the TGISC® without delay about possible compulsory enforcement measures of third parties in the reserved wares. The client will transfer the documents required for an intervention. The instruction obligation also exists for interference of all types. Independent of this, the client must inform the third party in advance of the existing rights to the products, documents, data carriers and other work materials. The costs of an intervention by the TGISC® are born by the client insofar as the third party is not in a position to reimburse these.
 
§ 8 Transfer of usage rights
With complete payment of each service charged by the TGISC®, the client acquires the usage rights to each paid service, independent of whether these are protected by copyright. The usage rights are limited to the contractually agreed purposes, in particular to the agreed or relevant sales region, the contract duration (as well as in the realization phase the agreed upon requirements apply in particular for the Presence-P, Placement-P and People-P). In case of doubt the usage right does not extend to further requirements. A further transfer to third parties is only allowed with the explicit consent of the TGISC®. The client is not authorized to change presented recommendations during the execution of the order, independent of whether these are protected by copyright.

In this respect the aforementioned payments and services also apply to limited term agreements; the aforementioned transfer of right of use therefore only becomes valid upon settling the total account payable, if applicable consisting of partial sums. The right of use may be granted prior to such event, but must then be in writing.
 
Insofar as the TGISC® draws on third parties for the fulfillment of services incumbent on it, it acquires the usage right in the scope agreed to with the client and transfers it to the client according to the aforementioned measures.
 
§ 9 Compensation
The compensation of the TGISC® consists of the following elements:

If the contractual parties do not explicitly agree to the compensation of the TGISC®, then the client compensates the services of the TGISC® in the amount of the daily rates named in the fee list, whereby a minimum (recognition) fee applies in the amount of Euro 75,000.00 p.a. Furthermore the client compensates the services of the TGISC® with a success bonus in the amount of 10% of the typically difference between expected and actual success; in any case the success fee, which solely applies to the respective agreed service (also refer to: §4 scope of services, here: 5P overall strategy versus implementation services; hence agreeing to a success fee in compensation of a 5P overall strategy in no event results in implementation services being owed, which are always payable separately.), shall be commensurately based on the objective strived for (and achieved). In this case commensurate refers to a “positive doubling” of the balance between the business risks of TGISC® and the percentage by which the actual outlay was reduced for the fee in recognition of services. Example: if the fee in recognition of services was defined as 60% less than the actual outlay the success fee (upon attaining or exceeding the defined success, defined as „threshold“) shall overcompensate the outlay by 120%; if the fee in recognition of services was defined as 40% less than the actual outlay the success fee (upon attaining or exceeding the defined success, defined as „threshold“) shall overcompensate the actual outlay by 80%. Typically an individualized success fee based on the amounts exceeding the specified threshold is payable. In this respect the amounts exceeding the threshold are allocated at a specific rate, e.g. 10% success fee for TGISC®, 90% to the client. Until the actual expenditures of TGISC® are fully paid the amounts exceeding the threshold are paid in full to TGISC®, which however shall not result in a deviation from the agreed payment. In this respect payments from the success fee, unless otherwise agreed, shall be made annually and end no less than 7 years upon ending (any and all) collaboration, less in subsequent years than might result in the respective year, namely in the event during the year prior more was paid compared to previous years as agreed primary settlement of the actual outlay than defined by the success fee percentage. Hence the goal is to prioritise settling the actual outlay TGISC® upon success whilst on average not exceeding or overpaying the success fee percentage during the years success fees are paid.

Insofar as no special agreement has been made, the TGISC® will further charge such services, for which the TGISC® has employed third parties, with 19% of the respective invoice amount. The TGISC® reserves the right to agree to an individual minimum fee with the client.
Insofar as the work results delivered by the TGISC® should be utilized by the client or third party in foreign countries, this utilization must be especially compensated.
 
In the case of increase of the annual total budget, the compensation of the TGISC® is accordingly increased. Should the client decrease the annual total budget, then the compensation of the TGISC® is computed for the total budget for the fiscal year which was disclosed in the previous year. Since the TGISC® favors the definition of individual annual fees which are independent of the annual budget, the TGISC® is always gladly willing to make an individual agreement with the client.


If the client modifies orders being placed with the TGISC®
that influence to more than only an unsubstantial extent the planning or execution of services of the TGISC® or if the client – as far as possible -cancels orders completely or partly, the client pays the remuneration previously agreed together with all relevant income in this respect of the TGISC®, each less 20% saved expenses as well as all expenses which have been arisen until the notification of change. The evidence that the saved expenses would be higher or lower remains subject to proof of both parties of the contract.
The client exempts the TGISC® from possible claims and herewith required and related measures against the TGISC® of third parties that arise due to the order modification/cancellation.

Price list for daily rates (in EUR). CEO: 7.400,00. C-Level: 5.500,00. Head of Consulting: 3.800,00. Senior Consulting: 3.200,00. Consulting: 2.600,00. Head of Strategy: 3.800,00. Strategy: 2.900,00. Head of Creative Lab: 2.700,00.  Creative Lab: 1.760,00. Operating Management: 2.320,00. Programming / Internet / Cut: 1.760,00. Inhouse production: 720,00.


Travel- and transport costs that arise from travel or deliveries to the client or to the respective place, will be charged by the TGISC® in the amount of the actual and demonstrable costs. The time expenditure for the travel will be charged according to the hourly rates of the fee list. In the case of monitoring of film, radio, and television jobs, print monitoring and print inspection, the expended time must be compensated according to the stipulations of the fee list of the TGISC®.

Technical services (in EUR). 1. Final drawing: 1.1. Advertisements. Basic final drawing per advertisement: 1/2 page: 630,00 - Adaptation 450,00; 1/1 page: 810,00 - Adaptation 600,00; 2/1 page: 1.170,00 - Adaptation 870,00. 1.2. Posters, banners, foil prints. Basic final drawing per poster: Up to A0: 830,00 - Adaptation 600,00; CLP, column sized:  1.280,00 - Adaptation 830,00; Super poster, 18/1: 1.430,00 - Adaptation 1.130,00. 1.3 Catalogues, brochures, flyer. Basic final drawing per page: Head: 900,00 - Adaptation 600,00; Up to 3 pages: 750,00 - Adaptation 500,00; 4 pages or more: 550,00 - Adaptation 360,00. 1.4. Small format prints. Basic final drawing per surface: 1/1 page: 420,00 - Adaptation 290,00; 2/1 page: 570,00 - Adaptation 420,00. 2. Scans: 2.1. Layout, all formats: 60,00 (4C), 40,00 (S/W). 2.2. High End. Up to A5: 120,00 (4C), 70,00 (S/W); A4: 230,00 (4C), 90,00 (S/W); A3: 230,00 (4C); A2: 300,00 (4C). 3. Proof: A5: analog 90,00 - digital 60,00; A4: analog 110,00 - digital 80,00; A3: analog 150,00 - digital 100,00; A2: analog 230,00 - digital 150,00. 5. Data carrier: CD-burning per blank (from 4 copies): 55,00. Data transfer per commenced 1/4 hour (in each case first 30 minutes no charge): 35,00.

 

Costs in Presence-P:
1. Development of layouts in Euro.
Advertisements, online banners (in the ratio of analogue to print):
1/4 page 2.460,00. 1/1 page  6.860,00. 2/1 page 9.900,00.
Posters, banners and foil prints: up to A0 3.920,00. CLP 6.680,00. Oversize up to 18/1  7.440,00.  Catalogues, brochures, flyers:  Title page/Wrapper 1.730,00. Extra pages, up to 3 pages 1.440,00 per page. From the fourth page on and more 760,00 per page. Only 1/1 page 2.920,00, 2/1 page 3.960,00.
2. Development of text concepts in Euro.
Advertisements, online banners (in the ratio of analogue to print): 1/4 page 680,00. 1/1 page  1.300,00. 2/1 page 1.880,00. Posters, banners and foil prints: up to A0 620,00. CLP 1.320,00. Oversize up to 18/1  1.470,00.  Catalogues, brochures, flyers: Title page/Wrapper 560,00. Extra pages, up to 3 pages 470,00 per page. From the fourth page on and more 760,00 per page. Only 1/1 page 920,00, 2/1 page 1.250,00.

Service Fee. In addition to all third party invoices a 19% service fee is charged.
 
§ 10  Payment conditions
Services which are invoiced by the TGISC® must be paid by the client within 10 days of receipt of the invoice. All prices are understood in Euro and as net prices, to which the legal VAT is added. The TGISC® offers no discounts. Third party discounts will be transferred to the client.
 
Compensation of the TGISC® which is allotted to a fiscal year must be paid in advance by the beginning of the fiscal year. If nothing else is agreed on, the client is authorized to pay the compensation each time by the first of a month as follows: In the first contractual year 33% of the annual compensation in the first contractual month and the remaining yearly amount in three equal installments. In the following years in four equal installments. This does not apply if the client is more that 14 days in default with a partial payment. In this case the total yearly compensation is immediately due.

Insofar as the total budget of the client within a fiscal year concentrates significantly on a certain time period, the contractual parties can agree that the compensation be paid in unequal installments. The details must be specially agreed on and should be set down in writing. Independent of this the TGISC® is authorized to demand advance payments, the amount of which is oriented toward the relationship of the performed partial service to the total service to be performed.
 
The TGISC® is authorized to demand a corresponding advance payment for outlays, which should be employed for the goals of the client, in a timely manner before the occurrence of the outlay reimbursement claim.

A payment is considered to be made when it is credited to the account of the TGISC® or in the case of check payment the credit is received without reservation.
 
 
§ 11 Delay, offset and withholding rights
The client enters default after the passing of the payment deadline named in § 10. The TGISC® is authorized to charge default interest in the amount of eight percentage points above the basic interest rate. The enforcement of a damage which extends beyond this is reserved. In the case of default of the client, the TGISC® is authorized to perform outstanding contractual obligations for the client only against advance payment or a collateral security in the full amount. Furthermore the TGISC® is authorized to cancel usage rights which have been transferred to the client until the complete payment of all demands from the business relationship. The TGISC® is authorized to withdraw from the contract if the delay is longer than 14 days. The client can offset counterclaims insofar as these are legally determined or undisputed. A withholding right can only be enforced insofar as it affects the same contractual relationship.

Insofar as the TGISC® is dependent on participation services of the client and the client does not perform these services appropriately, in particularly not in a timely manner, the TGISC® does not enter arrears.
 
§ 12 Liability
The TGISC® is liable according to the principles of an orderly businessman. For a violation of obligations which is the fault of the TGISC®, the TGISC® is liable according to the legal conditions. Should the client demand compensation for damages, then the TGISC® is only liable for predictable average damages and is restricted to 5% of the order value. Further reaching claims of the client are excluded. This does not apply insofar as the TGISC® has assumed a guarantee in an individual case, further not for the violation of cardinal obligations and in the case of damage to life, limb or health which can be attributed to a negligent breach of duty of the TGISC® or an intentional or negligent violation of obligations of a legal representative or fulfillment assistant of the TGISC®. In regard to other damages the TGISC® is liable only in the case of an intentional or grossly negligent breach of duty regarding the individual behavior as well as regarding the behavior of a legal representative or fulfillment assistant.

The TGISC® is not liable when it has acted by reason of documents, specifications and/or approvals of the client. This does not apply if the TGISC® contrary to duty has not informed the client about the existing risk in the implementation in the respective case.
 
Insofar as the contractual parties have agreed that the TGISC® in deviation from innowait System with FutureAsset® and LiveResearch® should perform analysis services of only the secondary market research for the client, the TGISC® will use solely data from providers and other sources which it considers to be reliable. The TGISC® works toward this goal together with renowned institutions. The TGISC® is not liable for the correctness of acquired data independent of the scope of the activity. Insofar as the TGISC® in the individual case has doubts about the correctness of certain data, it will inform the client and discuss with the client the further approach (restriction of data material, evaluation of other sources, conversion to primary research, the innowait system with FutureAsset® and LiveResearch® etc.).

The client releases the TGISC® from the claims of third parties if the TGISC® has acted at the explicit request of the client. The client is responsible for legal checks, whereby the TGISC® has provided at the explicit request of the client a legal security in the form of an external service to be separately paid. The TGISC® will recommend legal checks to the client with the diligence of an orderly businessman.

Insofar as the TGISC® at the insistence of the client assigns services to a third party which do not belong to the agreed service catalog of the TGISC® (external services), the TGISC® is not liable for the job results of the employed third party. Insofar as the TGISC® is dependent on the advance service of third parties and the respectively employed party does not perform in a timely manner, the TGISC® is not liable. Insofar as the TGISC® is entitled to make claims for damage compensation against the third party, it will transfer this up to the amount of the damages of the client to the client.
 
Insofar as claims for compensation of damages against the TGISC®, which do not concern injury to life, limb or health of the client, are not excluded for minor negligence, such claims expire within one year after the claim originated.
 
§ 13 Cancelation
Every contractual party can cancel the contract according to the individually agreed upon conditions. The TGISC® points out that such contracts that the TGISC® has concluded with third parties (fixed orders) in the fulfillment of the contractual services in the interest of the client are not affected by a cancellation of the contract. The obligations of the client resulting from these contracts with third parties do not automatically expire due to the cancellation of the contract between the TGISC® and the client. The obligations of the client from the contracts concluded with third parties, contract duration, cancellation options, etc. are geared toward the content of the respective contracts. The client declares his willingness to also fulfill these obligations after the ending of the agreement or the collaboration between the TGISC® and the client.
 
If the contractual parties do not explicitly agree to something else, the TGISC® is not obligated to store products, documents, data carriers or other job materials. Job materials which have been entrusted to the client must be returned to the TGISC® upon request after the execution of the contract unless the parties have agreed differently.
 
§ 14  Place of fulfillment, place of jurisdiction and applicable law
The place of fulfillment for all services resulting from the business relationship between the TGISC® and the client is Hamburg, unless the parties have explicitly agreed to something different. The place of jurisdiction for all claims from the business relationship between the TGISC® and the client is exclusively Hamburg, insofar as the client is a businessman, judicial person of public law or publicly legal special assets or has no general place of jurisdiction in Germany. This agreement is governed by German law.
 
§ 15  Salvatory clause
Should individual stipulations of the agreement with the client including these General terms and conditions be or become completely or partially ineffective, the validity of the remaining stipulations remains intact.
 
 
Status: January 2008

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