GENERAL TERMS AND CONDITIONS OF USE: as of March 2018
1. General principles / scope
1.1 These general terms and conditions apply exclusively to all legal transactions between the client and the consultant. The version valid at the time of the conclusion of the contract is decisive.
1.2 These general terms and conditions also apply to all future contractual relationships, even if this is not expressly indicated in additional contracts.
1.3 Conflicting general terms and conditions of the client are invalid unless they are expressly recognized in writing by the consultant.
1.4 In the event that individual provisions of these general terms and conditions are and / or become ineffective, this does not affect the effectiveness of the remaining provisions and the contracts concluded based on them. The ineffective one is to be replaced by an effective provision that comes closest to its meaning and economic purpose.
2. Scope of the advisory assignment / representation
2.1 The scope of a specific consulting assignment is contractually agreed in each individual case.
2.2 The consultant is entitled to have the tasks incumbent on him performed in whole or in part by third parties. The third party is paid exclusively by the consultant himself. There is no direct contractual relationship of any kind between the third party and the client
2.3 The client undertakes not to enter any kind of business relationship with persons or companies that the consultant uses to fulfill his contractual obligations during or up to three years after the termination of this contractual relationship. In particular, the client will not commission these persons and companies with such or similar consulting services that the consultant also offers.
3. Client’s obligation to provide information / declaration of completeness
3.1 The client ensures that the organizational framework conditions when the consulting assignment is fulfilled at his place of business allow work that is as undisturbed as possible and conducive to the rapid progress of the consulting process.
3.2 The client will also provide the consultant with comprehensive information about previous and / or ongoing consultations – also in other specialist areas.
3.3 The client ensures that the consultant is provided with all documents necessary for the fulfillment and execution of the consulting assignment in a timely manner and that he is informed of all processes and circumstances that are important for the execution of the consulting assignment. This also applies to all documents, processes and circumstances that only become known during the activity of the consultant.
3.4 The client ensures that his employees and the legally stipulated and possibly established employee representatives (works council) are informed by the client prior to the start of the work.
4. Securing independence
4.1 The contracting parties commit themselves to mutual loyalty.
4.2 The contracting parties mutually undertake all precautions that are suitable to prevent the endangerment of the independence of the third parties and employees of the consultant. This applies in particular to offers made by the client for employment or the acceptance of orders on his own account.
5. Reporting / obligation to report
5.1 The consultant undertakes to report to the client on his work, that of his employees and, if necessary, that of third parties commissioned as well.
5.2 The client will receive the final report within a reasonable time, i.e. two to four weeks after completion of the assignment, depending on the type of consulting assignment.
5.3 The consultant is not bound by any instructions in the production of the agreed work, acts at his own discretion and on his own responsibility. He is not tied to any specific place of work or specific working hours.
6. Protection of intellectual property
6.1 The copyrights to the works created by the consultant and its employees and commissioned third parties (in particular offers, reports, analyzes, expert opinions, organizational plans, programs, service descriptions, drafts, calculations, drawings, data carriers, etc.) remain with the consultant. They may only be used by the client during and after the termination of the contractual relationship for purposes covered by the contract. In this respect, the client is not entitled to reproduce and / or distribute the work (s) without the express consent of the consultant. Under no circumstances will the consultant be liable to third parties because of unauthorized duplication / distribution of the work – for the correctness of the work.
6.2 If the client violates these provisions, the consultant shall be entitled to terminate the contractual relationship prematurely and to assert other legal claims, for injunctive relief and / or compensation.
7.1 The consultant is entitled and obliged, regardless of fault, to correct inaccuracies and deficiencies in its performance that it becomes aware of. He will notify the client of this immediately.
7.2 This entitlement of the client expires six months after the respective service has been provided.
8. Liability / Compensation
8.1 The consultant is only liable to the client for damage in the event of gross negligence (intent or gross negligence). This also applies accordingly to damage caused by third parties called in by the consultant.
8.2 Claims for damages by the client can only be asserted in court within six months of becoming aware of the damage and the damaging party, but no later than three years after the event giving rise to the claim.
8.3 The client must provide evidence that the damage was caused by the consultant.
8.4 If the consultant performs the work with the help of third parties and warranty and / or liability claims against these third parties arise in this context, the consultant assigns these claims to the client. In this case, the client will give priority to these third parties.
9. Confidentiality / data protection
9.1 The consultant undertakes to maintain absolute secrecy about all business matters of which he is aware, business and trade secrets as well as any information he receives about the type, scope and practical activities of the client.
9.2 Furthermore, the consultant undertakes to maintain confidentiality from third parties about the entire content of the work as well as all information and circumstances that have been received in connection with the creation of the work, in particular also about the data of clients of the customer.
9.3 The consultant is released from his obligation to maintain confidentiality about any assistants and deputies he uses. However, he must completely transfer the confidentiality obligation to these and is liable for their breach of the confidentiality obligation as for his own breach.
9.4 The obligation of confidentiality extends indefinitely beyond the end of this contractual relationship. Exceptions exist in the case of legally required information obligations.
9.5 The consultant is entitled to process personal data entrusted to him within the scope of the purpose of the contractual relationship. The client guarantees the consultant that all necessary measures, those within the meaning of the Data Protection Act, such as declarations of consent by the data subjects, have been taken.
10.1 After completion of the agreed work, the consultant receives a fee in accordance with the agreement between the client and the consultant. The consultant is entitled to submit interim invoices in accordance with the progress of work and to request advance payments corresponding to the respective progress. The fee is due upon invoicing by the consultant.
10.2 The consultant will issue an invoice entitling to input tax deduction with all legally required features.
10.3 Any cash out-of-pocket expenses, expenses, travel expenses, etc. are to be reimbursed by the client against the invoice of the consultant.
10.4 If the agreed work is not carried out for reasons on the part of the client or due to a justified premature termination of the contractual relationship by the consultant, the consultant retains the right to payment of the entire agreed fee minus saved expenses. If an hourly fee has been agreed, the fee is to be paid for the number of hours that can be expected for the entire agreed work, minus the saved expenses. The saved expenses are agreed at a flat rate of 30 percent of the fee for those services that the consultant has not yet performed by the date of the termination of the contractual relationship.
10.5 In the event of non-payment of interim invoices, the consultant is released from his obligation to provide further services. The assertion of further claims resulting from the non-payment is not affected by this.
11. Electronic billing
11.1 The consultant is entitled to send the client invoices in electronic form. The client expressly agrees to the sending of invoices in electronic form by the consultant.
12. Duration of the contract
12.1 This contract ends with the completion of the project.
12.2 Regardless of this, the contract can be terminated at any time for important reasons by either party without observing a period of notice. An important reason is
– if a contractual partner violates essential contractual obligations or
– if a contractual partner falls into arrears after opening insolvency proceedings
– if there are justified concerns about the creditworthiness of a contractual partner for whom no insolvency proceedings have been opened and the latter neither makes advance payments at the request of the consultant nor provides suitable security prior to the performance of the consultant and the poor financial situation was not known to the other contractual partner when the contract was concluded.
13. Final provisions
13.1 The contracting parties confirm that they have provided all information in the contract conscientiously and truthfully and undertake to mutually inform each other of any changes immediately.
13.2 Changes to the contract and these general terms and conditions must be made in writing, likewise a departure from this formal requirement. Verbal collateral agreements do not exist.
13.3 Substantive Austrian law is applicable to this contract to the exclusion of the reference norms of international private law. The place of performance is the place of the professional establishment of the consultant. The court at the consultant’s place of business is responsible for disputes.