Terms & Conditions - Getacon.com

For Consultants

As of January 1, 2021

§ 1 Scope

These Terms and Conditions govern the cooperation of independent consultants and consulting companies (the “CONSULTANT”) with Roth Advisory (Doing business as Getacon), having its seat in Küfergasse 2, 6315 Oberägeri, Switzerland, and registered in the commercial register of the Canton Zug under CH-170.1.010.340-9 (Roth Advisory), and the use of this website getacon.com (the “Platform”, “GETACON”).

These Terms and Conditions apply only to entrepreneurs in accordance with Sec. 310, para. 1 and Sec. 14 of the German Civil Code (BGB).

Unless agreed otherwise, the Terms and Conditions in the version effective at the time of the CONSULTANT’s registration or in the version most recently communicated to the CONSULTANT in text form are deemed to be a framework agreement for the provision of consulting services.

GETACON and the CONSULTANT further conclude an individual project agreement for each project where terms applicable to each project, in particular financial terms, are individually agreed.

§ 2 Subject matter

These Terms and Conditions (collectively the “Consulting Framework Agreement” or “Framework Agreement”) apply to the provision of consulting services with GETACON’s clients (the “CLIENT”). A CLIENT is defined as a company or organization that requests consulting services through GETACON. The professional services include, in particular consulting and support of the CLIENT in the implementation and accomplishment of the project as described in more detail in the respective individual agreement.

The CONSULTANTs are not employed by GETACON but carry out projects as subcontractors. The CONSULTANT provides their services independently and takes their own responsibility for the provision of services.

When registering on the Platform, the CONSULTANT must accurately enter all data, in particular the following: First name and second name, address, contact details, professional experience, education, and qualifications (“personal data”).

The Consulting Framework Agreement is concluded by user profile activation notice. It does not result in a right to perform consulting services on behalf of GETACON.

The CONSULTANT is assigned to provide consulting services to the CLIENT only upon the conclusion of an individual agreement explicitly negotiated for each project (the “Project Agreement”).

§ 3 Project Agreement

GETACON will notify the CONSULTANTs of projects suitable for them based on their background by phone, by email, or via the Platform. The CONSULTANT then informs GETACON by phone, by email, or via the Platform whether he is interested in providing the consulting services and may “apply” for the introduced project, i.e. submit an offer for the provision of consulting services for the introduced project.

The offer specifies, in particular, the daily rate or a fixed fee. At the same time, the CONSULTANT also consents to the disclosure of his personal data to the respective CLIENT of GETACON.

If necessary, a personal conversation or phone conversation coordinated by GETACON takes place between the CONSULTANT and the CLIENT.

GETACON may accept the CONSULTANT’s offer within 14 days of its receipt at GETACON or make a counteroffer to the CONSULTANT.

§ 4 Independent professional activity

The CONSULTANT provides their services independently and takes their own responsibility for the provision of services. The services are provided upon agreement between the CLIENT and the CONSULTANT at the CLIENT’s premises or at another place agreed between the CLIENT and the CONSULTANT. Otherwise, the CONSULTANT determines the location of their work/activities themselves. The CONSULTANT assures that they have properly registered their business, have obtained any necessary approvals by themselves, and where applicable, properly pays necessary charges to tax and social security bodies.

§ 5 Provision of services

Throughout the project duration, the CONSULTANT will:

provide the consulting services with due care and skill and using their competencies;
in providing project-related consultation services, ensure that the possible defined milestones are achieved on time and satisfactorily for the CLIENT; and
in providing time-based consulting services, regard the agreed hours per day as a benchmark and contribute the necessary time to achieve the project goal successfully.

In the event that the CONSULTANT is unable to perform the services due to illness, injury, or other essential reasons, he will promptly inform GETACON and the CLIENT accordingly. If no services are performed with respect to a consulting project and project goals, no fee is payable.

§ 6 Fee and billing

GETACON pays the CONSULTANT a fee for his consulting services (the “Consulting Fee”). The Consulting Fee results from consulting days actually worked, and the daily rates agreed for a particular project under the respective Project Agreement.

The Consulting Fee is billed monthly. To this end, the CONSULTANT records the consulting days worked, including a brief description, at the end of each month and communicates them to GETACON using an “activity tracking form”. GETACON then issues an invoice to the CLIENT, which the latter may review within seven days. If the CLIENT does not object to the invoice, it is deemed approved and becomes due in 30 days. GETACON pays the CONSULTANT the agreed fee within seven business days (Zug, Switzerland) of payment by the CLIENT of the remuneration for the consulting services.

§ 7 Loyalty arrangement and prohibition of circumvention

From the moment the CONSULTANT and a CLIENT are put in contact with each other by GETACON, the CONSULTANT agrees not to contact, directly or indirectly, in person or through third parties, the CLIENT of GETACON to offer its consulting services, to accept projects and to provide consulting services to the CLIENTS for whom the CONSULTANT has worked (“Loyalty Agreement”).

In the event the CLIENT is a consulting firm, the Loyalty Agreement also applies to the CLIENTS’ clients involved in the project for which the CONSULTANT has worked or for which the CONSULTANT is proposed by GETACON or the CLIENT.

This prohibition is applicable from the time of the project proposal and remains applicable for the duration of the CONSULTANT’s engagement with the CLIENT, as well as for eighteen months following the end of the CONSULTANT’s engagement with the CLIENT, or the CLIENT’s clients (“protection period”).

If the CLIENT and the CONSULTANT enter into employment, consulting, or other agreement during the “protection period” without the intermediary of GETACON, it is a rebuttable presumption that the CONSULTANT has contacted the CLIENT directly and made an offer to provide consulting services. The same shall apply if the CONSULTANT enters into employment, consulting, or another contract with an affiliate of the CLIENT or a client of the CLIENT for whom the CONSULTANT has been engaged with (proposed or worked for).

If the CONSULTANT and the CLIENT enter into a contract during the “protection period” GETACON shall be entitled to charge a contractual penalty amounting to twice the total fee for the project concerned, plus value-added tax. The same shall apply if the CONSULTANT enters into employment, consulting, or another contract with a company affiliated to the CLIENT or a client of the CLIENT for whom the CONSULTANT has been engaged with. The above contractual penalty is also applicable for any other violation of the Loyalty Agreement.

§ 8 Liability

GETACON is liable for breach of contractual and non-contractual obligations by GETACON as provided by law. GETACON is liable for damages – on any legal ground whatsoever – in the case of intent and gross negligence. In the case of less than gross negligence, GETACON is only liable

for damages resulting from fatalities, physical injuries, or damage to health and
for damages resulting from a breach of a material contractual obligation (obligation the fulfillment of which is crucial for performing a consultancy contract correctly and on the compliance with which GETACON regularly relies upon and may rely on (essential contractual obligation)).

The website getacon.com also contains links to websites maintained by third parties and the content of which GETACON may not be aware. Links to third-party websites are provided solely for the convenience of navigation. GETACON assumes no liability for the content of third-party websites.

§ 9 Rights of use

If and insofar as works created explicitly for the CLIENT (the “Deliverables”) result from the provision of contractual services, the CONSULTANT hereby grants GETACON the exclusive right of use of the respective Deliverable for all types of use, unlimited in terms of space, time, and content.It also includes the right to transfer the right of use to a third party, notably the CLIENT.

§ 10 Confidentiality agreement

As part of his work for GETACON, the CONSULTANT will inevitably receive information about GETACON and the CLIENT that is not publicly known (the “Confidential Information”). The CONSULTANT will treat this information as confidential at all times. The confidentiality obligation survives the termination of this Agreement.

This obligation does not apply to the Confidential Information:

that was verifiably already known to the recipient at the time of the execution of this Agreement or thereafter disclosed by a third party without any breach of the confidentiality agreement, statutory provisions, or regulatory requirements;
that is publicly known at the time of the execution of this Agreement or becomes publicly known thereafter through no breach of this Agreement; and
that is required to be disclosed by law or by order of a court or public authority. To the extent permitted and possible, the receiving party required to make a disclosure will inform the other party in advance and enable it to challenge the disclosure.

GETACON may publish an anonymous short description of the project on the GETACON website without naming the CONSULTANT but specifying the project subject, industry, and project duration.

“Confidential Information” means, in this context, all information made available to the CONSULTANT by GETACON or to the CLIENT in connection with this Agreement and the relevant project (whether verbally, electronically, in writing, or in any other form), including, but not limited to, any information on project content, Agreement content, tasks of the CONSULTANT, and identity of the CLIENT and its customers, suppliers, and partners. The fact that the CLIENT is looking for consultants and that GETACON supports it in this regard is also confidential.

At any time during the project, upon request of the CLIENT or GETACON, the CONSULTANT will return to the CLIENT or GETACON all materials with the Confidential Information in his possession. Upon completion of the project work, all Confidential Information will be returned or destroyed.

In the event that the CONSULTANT becomes aware that employees or consultants have disclosed the Confidential Information in violation of this Agreement, the CONSULTANT must inform GETACON and the relevant CLIENT thereof without delay.

§ 11 Data privacy protection

The parties undertake to comply with the applicable data privacy protection regulations and warrant that they have imposed confidentiality obligations on persons authorized to process personal data or that they are subject to an appropriate statutory confidentiality obligation.

§ 12 Term

This Agreement commences upon the CONSULTANT’s registration on the GETACON Platform.

This Agreement remains in effect indefinitely and may be terminated by either party with four weeks’ notice to the end of a month. The right to immediate termination for a good cause remains unaffected. A conviction for a crime is deemed, among other things, to be a good cause.

A termination of the Framework Agreement does not affect any individual agreements concluded on its basis if the term of an individual agreement as specified therein is other than that of this Framework Agreement. Further, Sections 7 (“Loyalty arrangement and prohibition of circumvention”) and 10 (“Confidentiality agreement”) survive the termination of this Agreement.

§ 13 Governing law and venue

The contractual relationship is governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on the International Sale of Goods. The place of jurisdiction is, as far as permissible, Zug, Switzerland.

§ 14 Amendments and supplementary agreements

These Terms and Conditions, including annexes, constitute the entire agreement between the parties and supersede all previous written and oral drafts, contracts, agreements, and understandings. Any supplementary agreements and amendments to this contract, including this written form clause, must be made in writing.

§ 15 Severability

Should any of the above provisions be legally invalid, this does not affect the validity of the remaining provisions. The invalid provision must be replaced by a valid provision that corresponds to its intended economic purpose.

For Companies

As of October 1, 2022

§ 1 Scope

These Terms and Conditions govern the performance of consulting services by consultants provided by Roth Advisory (doing business as Getacon), having its seat in Küfergasse 2, 6315 Oberägeri, Switzerland, and registered in the commercial register of the Canton Zug under CH-170.1.010.340-9 (Roth Advisory), and the use of this website getacon.com (the “Platform”, “GETACON”). Any deviations require the express consent of GETACON.

These Terms and Conditions apply companies in accordance with Sec. 310, para. 1 and Sec. 14 of the German Civil Code (BGB).

Unless agreed otherwise, the Terms and Conditions in the version effective at the time of the CLIENT’s registration or in the version most recently communicated to it in text form are deemed to be a framework agreement for the provision of consulting services. This framework agreement sets out general framework terms. The specific services are provided on the basis of individual agreements, which specify in particular the type and scope of the respective service as well as the fee payable (an “individual agreement”).

§ 2 Subject matter

GETACON will provide the CLIENT with consultants who perform consulting services for the CLIENT on behalf of GETACON. The consultants working on behalf of GETACON are self-employed individuals (natural persons) or consultants employed by a consulting company (the “CONSULTANT”). The professional services include in particular consulting and support of the CLIENT in the implementation and accomplishment of the project as described in more detail in the respective individual agreement.

§ 3 Execution of an agreement

The CLIENT may inform GETACON via the Platform, by phone, or by email that it needs advice and is looking for consultants for projects (“project need”). The CLIENT provides in this case the most accurate possible project description; in particular, the project goal, project duration, project location, project budget, and the required consulting expertise should be specified (the “project description”). On the basis of the project description and, where appropriate, further consultations, GETACON will search for, and make requests to, suitable CONSULTANTS and offer the CLIENT to execute an individual agreement setting forth in particular the following information:

name of the CONSULTANT
qualification and experience of the CONSULTANT
daily rate
The CLIENT may personally meet the respective CONSULTANT(s) by agreement with them. The CLIENT may accept GETACON’s offer within five business days upon the receipt of the offer to execute an individual agreement or make a counteroffer to GETACON. GETACON may accept the counteroffer subject to the relevant proposed CONSULTANT’s consent within further five business days upon the receipt of the offer to execute an individual agreement.

§ 4 Consulting services

The services of the CONSULTANT are described in more detail for each project in an individual agreement. GETACON does not provide such consulting services by itself but assigns them to the CONSULTANT. The CONSULTANTS are not permanently employed by GETACON but act as GETACON’s contractors.

§ 5 Fee and billing

The CLIENT will pay GETACON for the contractual services the fee stipulated in the respective individual agreement. The billing is based on the CONSULTANT’s daily or hourly rates. In particular cases, the parties may also agree on a fixed fee for individual projects. The agreed fee does in general still exclude the then applicable value added tax.

GETACON will invoice the contractual services on a monthly basis. Each invoice contains the services rendered by the CONSULTANT in the respective billing period. The fee is payable to GETACON’s account within 30 days of receiving the invoice.

GETACON reserves the right to claim default interest at 9 percentage points above the applicable base interest rate.

§ 6 Loyalty arrangement and prohibition of circumvention

The CLIENT is prohibited, whether directly or indirectly and whether personally or through third parties, from entering into consulting agreements with the CONSULTANTs provided by GETACON (the “Loyalty Arrangement”). This prohibition applies for the duration of the CONSULTANT’s services to the CLIENT and for 18 months after the termination of those services of the CONSULTANT to the CLIENT (the “protection period”).

The CLIENT undertakes to notify GETACON in writing if it engages the CONSULTANT for the first time or repeatedly during the protection period. This applies also to mediation of services or other consultants and experts contacted or informed by the CONSULTANT, provided such mediation is intended to make profit.

If the CONSULTANT and the CLIENT enter into a contract during the protection period and in circumvention of GETACON, then GETACON is entitled to a contractual penalty of double the total project fee plus value added tax. The above penalty applies accordingly to any further breach of the Loyalty Arrangement.

§ 7 Permanent employment of the CONSULTANT

If the CLIENT wishes to permanently employ a CONSULTANT mediated or proposed by GETACON during the protection period, the CLIENT must pay a commission amounting to 30% of the gross annual salary including variable remuneration of the CONSULTANT (plus value added tax). Payment must be made within 30 days of commencement of the relevant employment relationship.

§ 8 Rights of use

If and insofar as works specifically created for the CLIENT (the “Deliverables”) result from the provision of the contractual services, GETACON grants the CLIENT the exclusive right of use, unlimited in terms of space, time, and content, to the respective Deliverable applicable for all types of use, with full payment of the agreed fee due for this project.

§ 9 Protection of confidential information

The parties will maintain confidentiality with respect to all in-house transactions and confidential matters of the other party, in particular business and commercial secrets, of which they become aware in the course of their cooperation. The confidentiality obligation survives the termination of this Agreement. GETACON will in particular impose the appropriate confidentiality obligation on the CONSULTANTS provided to the CLIENT.

This obligation does not apply to the Confidential Information

a) that was verifiably already known to the recipient at the time of the execution of this Agreement or thereafter disclosed by a third party without any breach of the confidentiality agreement, statutory provisions, or regulatory requirements;

b) that is publicly known at the time of the execution of this Agreement or becomes publicly known thereafter through no breach of this Agreement; and

c) that is required to be disclosed by law or by order of a court or public authority. To the extent permitted and possible, the receiving party required to make a disclosure will inform the other party in advance and enable it to challenge the disclosure.

GETACON may publish an anonymous short description of the project on the GETACON website without naming the CLIENT but specifying the project subject, industry, and project duration.

§ 10 Term

This Agreement commences upon the CLIENT’S registration on the Platform and remains in effect indefinitely. It may be terminated by either party at the end of a month by giving four weeks’ notice. The right to immediate termination for good cause remains unaffected. A failure to pay an invoice within the agreed period and a conviction for a crime are deemed, inter alia, to be a good cause.

§ 11 Liability

a) for damages resulting from fatalities, physical injuries, or damage to health and

b) for damages resulting from a breach of a material contractual obligation (obligation of the fulfillment of which is crucial for performing a consultancy contract properly and on the compliance with which GETACON regularly relies and may rely (essential contractual obligation)).

GETACON’s liability, for any reason whatsoever, is limited to the respective project volume (in Euros) as specified in the service offer.

The website getacon.com also contains links to websites maintained by third parties and the content of which GETACON may not be aware of. Links to third-party websites are only for the convenience of navigation. GETACON assumes no liability for the content of third-party websites.

GETACON assigns to the CLIENT already now all claims for performance and claims for defects it has against its contractors. Such assignment includes also future collateral. The CLIENT accepts the assignment.

§ 12 Data privacy protection

The parties undertake to comply with the applicable data privacy protection regulations. If GETACON processes personal data on order of the CLIENT, the parties will conclude the necessary order processing agreement separately. The parties warrant that they have imposed confidentiality obligations on persons authorized to process personal data or that they are subject to an appropriate statutory confidentiality obligation.

§ 13 Governing law and venue

This framework agreement is governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on the International Sale of Goods. As far as permissible, the legal venue is Zug, Switzerland.

§ 14 Amendments and supplementary agreements

This framework agreement sets out all arrangements between GETACON and the CLIENT with respect to its subject matter. Any supplementary agreements and amendments hereto, including this clause requiring the written form, must be in writing.

§ 15 Severability

Should any of the above provisions be invalid, this does not affect the validity of the remaining provisions. The invalid provision must be replaced by a valid provision that corresponds to its intended economic purpose.