TriFinance GmbH, General Terms and Conditions

1. Scope

1.1 TriFinance GmbH (hereinafter also “TriFinance”, “we”, “us”, etc.) provides services to clients based exclusively on the following General Terms and Conditions (hereinafter also “GTC”). This also applies to all other business relationships based on conclusion of contract which includes them between the Client and TriFinance, insofar as they are not superseded by newer versions. Differing general terms and conditions and/or purchasing conditions of the Client are not acknowledged unless TriFinance has expressly consented to their validity in writing. This also applies if any general terms and conditions and/or purchasing conditions of the Client make provisions for their unconditional acknowledgement on order acceptance. Silence regarding such differing terms and conditions shall in particular not be deemed as acknowledgement or consent, additionally with future contracts. Persons employed by TriFinance in the fulfilment of orders (hereinafter also “commissioned specialists” in the business division Interim Management) are not authorised to grant consent for differing general terms and conditions and/or purchasing conditions.

1.2 These GTC apply to personnel consulting and recruitment provided by TriFinance and likewise to the business divisions, Interim Management and Project / Management Consulting. Separate terms and conditions apply to the business division, Personnel Leasing. Deviations contained in contractual offers submitted in writing by TriFinance take priority over the general terms and conditions.

2. Client Duty of Cooperation and Responsibility

2.1 The Client is to present the necessary information and documents to execute an order punctually and inform TriFinance of all procedures and circumstances which could be of significance for execution of the order (hereinafter “client information”). This also applies to documents, procedures and circumstances which only become known during the activities of TriFinance. The Client is to ensure that client information made available to us neither breaches copyright nor other third-party rights.

2.2 TriFinance is entitled to base its activities on all client information without checks, unless otherwise expressly agreed in writing or compulsory due to the contractual object. TriFinance shall however inform the Client in the event of identified errors. If data processing-supported assessments are required, the Client will in addition make computer time (including specialist personnel), test data, data evaluation capacities, etc. available punctually and to an adequate extent.

2.3 The Client is to provide TriFinance in a timely manner with all participation services required to deliver TriFinance’s services in accordance with the contract, in particular to make available to their employees, assistants or subcontractors all installations (hardware, software, network, etc.), suitable space and other work materials to enable proper performance of services, insofar as the activities occur at the premises of the Client and something different has not been agreed in writing.

2.4 If the Client is obliged to provide qualified specialists from among their employees for order execution, they shall only withdraw or replace these workers with the consent of TriFinance.

3. Work Results

3.1 With the exception of client information, all information, services, recommendations or other content made available by TriFinance to the Client in fulfilment of the agreed contract (hereinafter “work results”) are exclusively (consistent with the purpose of the services) intended for the Client’s internal use.

3.2 The Client is not entitled to disclose work results either in whole or in part to third parties (including to affiliated companies) or to refer to us in connection with the work results; this does not apply a) to lawyers if they, subject to this disclosure prohibition, examine the work results exclusively in order to advise the Client in relation to them, b) to the extent that the Client is legally bound to make a disclosure, or c) to other persons or companies (including companies affiliated with the Client) if we have already granted our consent in writing, they have signed our information agreement and merely use the work results in the context of the granted consent. If the Client is entitled to disclose work results in whole or in part, it is not permitted to change, edit or modify the work results.

3.3 The Client is permitted to include summaries, calculations or tables contained in work results which are based on client information in documents which the Client intends to use, but not however recommendations, conclusions or findings of TriFinance. The Client accepts sole responsibility for the content of such documents and is not entitled to refer to TriFinance in this respect vis-à-vis third parties - directly or indirectly.

3.4 The Client is not permitted to rely on the draft version of work results but only on their final written version. Draft versions of work results merely serve for internal and/or coordination purposes with the Client, are neither final nor binding and require further review. We are not obliged to update final work results in relation to circumstances which have been made known to us, or have arisen, since the date of conclusion of our activities named in the work results or - for want of such a date - the delivery of the work results. Unless otherwise agreed in writing, spoken information is only binding if confirmed in writing.

4. Acceptance Default, Failure to Cooperate

If the Client defaults on acceptance of services offered by TriFinance or fails to cooperate in accordance with Figure 2 above or in another way incumbent on them, TriFinance shall be permitted after unsuccessful warnings to termination of contract without notice. The right of TriFinance to compensation for additional expenses incurred as well as other damages due to default or lack of cooperation by the Client remains unaffected. This also applies if TriFinance does not make use of the aforementioned right of termination.

5. Rights of Use

TriFinance is entitled to reproduce, use and distribute work results based on general principles, norms, directives or the state of the art, as well as the results of software programs, at any time, free of charge and without limitation, insofar as the possibility of conclusions concerning the Client being drawn has been eliminated beforehand through corresponding deletions / changes.

6. Limitation of Liability

6.1 TriFinance accepts neither guarantees nor liability for business goals which are to be achieved or realised through consulting of the Client. Acceptance of guarantees by TriFinance categorically requires expressed agreement in writing.

6.2 TriFinance ensures that the specialists commissioned by it in the context of Interim Management possess the qualifications required for the planned activities based on their description by the Client. (culpa in eligendo liability) TriFinance does not accept responsibility for accuracy of the work results of commissioned specialists and is not obliged to examine work documents for accuracy or obtain police clearance certificates.

6.3 TriFinance accepts liability for damages or reimbursement of expenses in the context of legal provisions on injury to life, body or health and for damages which justify indemnifiability of the manufacturer under §1 of the German Product Liability Act (ProdHaftG) or were caused by fraudulent behaviour, intent or gross negligence as well as for expressly accepted guarantees.

6.4 In case of damages as a consequence of less than gross negligence, the liability of TriFinance is limited to the infringement of essential contractual obligations. These are obligations whose observance enables proper fulfilment of the contract and the observance of which the Client has placed their trust in and may also place their trust in and whose culpable non-observance endangers fulfilment of the purpose of the contract. In this case, the liability of TriFinance in the meaning of a maximum amount is limited to the amount of typically foreseeable damages for contracts of this type. Liability in accordance with Figure 6.3 remains unaffected.

6.5 TriFinance surmises that the amount of typically foreseeable damages for contracts of this type in accordance with Figure 6.4 does not exceed EUR 500,000 per order. If the Client does not consider this to be adequate, TriFinance will on corresponding request offer them the arrangement of a higher maximum amount estimated against related insurance premiums.

6.6 Unless otherwise individually agreed, the provisions of this Figure 6 also apply should liability toward third parties be substantiated. In this case, §334 of the German Civil Code (BGB) is used, with the consequence that TriFinance is only liable overall up to the respective maximum amount. The provisions of this Figure 6 furthermore apply in favour of the specialists and sub-contractors commissioned by TriFinance as well as assistants, employees and legal representatives of TriFinance, insofar as personal liability of these persons exists toward the Client on these grounds.

7. Indemnity Against Liability

The Client shall indemnify TriFinance and the persons named in Figure 6.6 from all claims of third parties (including companies affiliated with the Client) and from consequential obligations, damages, costs and expenses (in particular appropriate external legal costs) which result from use of the work results by third parties or because a third party relies on the work results, inasmuch as transfer of the work results has occurred directly or indirectly through the Client to them. This obligation does not apply to the extent that TriFinance has expressly declared its consent in writing that the respective third party may rely on the work results. The Client shall furthermore release TriFinance from all claims of third parties asserted regarding the execution of tasks assigned to a commissioned specialist of the Client.

8. Confidentiality and Data Protection

8.1 TriFinance is obliged to maintain confidentiality. The object of this duty of confidentiality is all client information entrusted to TriFinance during its activities as well as further business and operational secrets, manufacturing processes and all other business and/or operational knowledge, data, objects or documents made known to it, which have been passed on to it by the Client.

8.2 The duty of confidentiality described above does not exist on the part of TriFinance if and to the extent that information falling under the object of the confidentiality obligations a) was already known to TriFinance on the date of transfer by the Client, b) becomes generally known by publication or otherwise, unless this occurs due to breach of contract by TriFinance, c) is made known to TriFinance by third parties, d) is disclosed in order to exercise contractual rights of TriFinance either judicially or extra-judicially or to defend against claims made against TriFinance or e) must be disclosed due to legal requirements.

8.3 TriFinance shall take the necessary precautions to prevent unauthorised persons from gaining access to client information, documents or data created due to an order. TriFinance shall only grant access to the named documents to persons who are themselves obliged to comply with secrecy.

8.4 TriFinance is permitted to use electronic media, in particular email, for the exchange and transmission of information. The Client is aware that the electronic transmission of information (especially by email) carries risks. This does not represent a violation of the confidentiality obligations of TriFinance.

8.5 TriFinance is itself permitted to collect and process client information and enclosed data which can be attributed to certain natural persons (hereinafter “personal data”) and to transfer it to external service providers and/or subcontractors who may collect, use, transfer, store or otherwise process such data on behalf of TriFinance for the purposes of a) providing services including order initiation, b) compliance with regulatory requirements, c) risk management and quality control, d) internal accounting and e) providing other administrative and IT support services (hereinafter also “processing purposes”). As a rule, TriFinance gathers the following personal data in the context of order initiation and order processing: Contact data of reference persons, e.g. title, first name, surname, (work) email address, address and telephone number (landline and/or mobile) as well as other information necessary to execute the respective order and to assert and defend rights. The processing of personal data occurs in accordance with the applicable regulations, in particular taking into consideration national and European data protection regulations (German Federal Data Protection Act and EU GDPR). TriFinance is responsible toward the Client for ensuring the privacy of client information and compliance with data protection laws, independently of who the processor on behalf of TriFinance is.

8.6 The Client guarantees TriFinance that they are authorised to make available the personal data of third parties transferred by them to TriFinance and that the personal data made accessible to TriFinance has been collected and processed in accordance with the relevant data protection regulations.

8.7 At written request of the Client, TriFinance shall after conclusion of the commissioning issue client information and may produce and store copies thereof for verification purposes, so long as this is required by law or could be necessary to assert, exercise or defend legal claims. The same applies to personal data collected by TriFinance in the context of the commissioning or processed in the order for the Client.

9. Fees for Direct and Indirect Recruitment

9.1 TriFinance receives a recruitment fee in the amount of 40% of the gross annual income agreed between the candidate and the Client or a company affiliated with the Client for proof of conclusion of a work or service contract (hereinafter “contract”) between the Client or a company affiliated with the Client and a candidate, commissioned specialist or worker employed for order execution presented by TriFinance (hereinafter uniformly “candidate”). Voluntarily paid, additional monthly salaries, bonuses, contractual bonus schemes as well as all monetary benefits are to be included using at least their tax base / value in the calculation of gross annual income. The recruitment fee is exclusive of VAT at the statutory rate.

9.2 The claim to the recruitment fee arises if an effective contract is concluded between the candidate and the Client or a company affiliated with the Client within eighteen months of sending the personnel documents of the candidate and/or their employment as a worker, regardless of whether the contract comes to execution or what its contents are.

9.2 The Client shall immediately on conclusion of a contract with a candidate provide TriFinance without request with information on the gross annual income agreed therein by presenting a copy of the contract. In any case of infringement, the Client owes TriFinance a contractual penalty of EUR 5,000. The right to the recruitment fee and any further compensation claims remain unaffected by this. The latter will, however, be charged against the contractual penalty.

10. Remuneration, Due Date and Payment Obligations

10.1 TriFinance receives remuneration for other services than personnel recruitment in the amount of EUR 250 per hour of work, as well as expenses in verified amounts and travel costs in appropriate amounts lying above the tax limits, plus VAT in the legally applicable amount. Contractual agreements which deviate from this are likewise, insofar as not otherwise stated, always net plus VAT in the legally applicable amount.

10.2 Invoicing by TriFinance is usually monthly. TriFinance is however permitted to invoice in shorter time intervals or by means of a maximum monthly advance invoice. All invoices of TriFinance are immediately due for payment on receipt.

10.3 If the Client is not a consumer in the meaning of §13 of the German Civil Code (BGB), they are only entitled to offset with counter-claims insofar as these are due, legally specified, undisputed or recognised by TriFinance. The Client is also only entitled to assert a right of retention in this case and under the same conditions if their counter-claim stems from the same legal relationship.

10.4 Without prejudice to other rights, TriFinance shall be entitled in the event of delay in payment of the Client to withhold all outstanding services under the respective contract or other similar contracts originating from the business relationship with the Client until TriFinance has received full payment.

11. Applicable Law and Jurisdiction

11.1 Exclusively German law with the exclusion of German international private law applies for all claims arising from or in connection with a contract and its execution.

11.2 If the Client is not a consumer in the meaning of §13 of the German Civil Code, exclusively the competent court in Duesseldorf, Germany is responsible for all disputes in connection with contract-related services and return services between the Client and TriFinance or, depending on the choice of TriFinance, the competent court where the Client’s head office is located or its commissioning branch or the competent court at the location of the TriFinance branch which focuses on providing the services.

12. Written Form and Severability Clause

12.1 Any order agreement and/or service description (as well as changes thereto) which deviates from these General Terms and Conditions must be in writing in accordance with §126 para 1 of the German Civil Code. This also applies to amendment of the written form requirement itself. It is sufficient for effectiveness if TriFinance and the Client each sign a separate copy of the same document.

12.2 In case of ineffectiveness of individual contractual provisions, the remaining provisions and agreement containing them remain thereby unaffected. The same applies to the provisions of these GTC and to the GTC themselves.

12.3 An ineffective or incomplete contractual provision or provision of these GTC is to be replaced by a regulation in the form of a supplementary contractual interpretation which comes closest to the economic purpose of the ineffective or incomplete provision. If this is not possible by means of supplementary contractual interpretation, the Client and TriFinance are equally obliged to agree on a valid provision instead of the provision found to be ineffective or incomplete that comes as close as possible to the intended economic objective of the parties.

TriFinance GmbH, Klaus-Bungert-Strasse 5a, 40468 Duesseldorf - GTC as of 01.07.2024