1. General Scope
- These General Terms and Conditions shall apply exclusively to all legal transactions between the Client and the Contractor (Management Consultant) – hereinafter only the term Contractor shall be used. The version valid at the time of conclusion of the contract shall be authoritative in each case.
1.2 These General Terms and Conditions shall also apply to all future contracts, thus even if no express reference is made to them in the case of supplementary contracts.
1.3 Any conflicting General Terms and Conditions of the Client shall be invalid unless expressly accepted by the Contractor in writing.
1.4 In the event that individual provisions of these General Terms and Conditions should be and/or become invalid, this shall not affect the validity of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision which comes as close as possible to its meaning and economic purpose.
2. Scope of the Consulting / Substitution
2.1 The scope of the specific consulting assignment shall be contractually agreed in each individual case.
2.2 The Contractor shall be entitled to have the tasks incumbent upon it performed in whole or in part by third parties. Payment of the third party shall be made exclusively by the Contractor herself. No direct contractual relationship whatsoever shall arise between the third party and the Client.
2.3 The Client undertakes not to enter into any business relationship whatsoever with persons or companies used by the Contractor for the performance of its contractual obligations during or up to three years after termination of this contract. In particular, the Client shall not commission such persons or companies with such or similar consulting services that are also offered by the Contractor.
3. Duty of the Client to provide information / Declaration of Completeness
3.1 The Client shall ensure that the organisational framework for the performance of the consulting assignment at his or her place of business allow the work to proceed as undisturbed as possible and in a manner conducive to the rapid progress of the consulting process.
3.2The Client shall also inform the Contractor comprehensively about previously performed and/or ongoing consultations – also in other areas of expertise.
3.3 The Client shall ensure that the Contractor is provided with all documents necessary for the fulfillment and execution of the consulting assignment in a timely manner, even without the Contractor`s special request, and that the Contractor is informed of all processes and circumstances that are of importance for the execution of the consulting assignment. This shall also apply to all documents, processes and circumstances which only become known to the Contractor during the performance of the consulting assignment.
3.4 The Client shall ensure that his/her employees and the employee representation (works council) provided for by law and established, if any, are informed by the Contractor prior to the commencement of the Contractor’s activities.
4.1 The contracting parties undertake to be loyal to each other.
4.2 The contracting parties mutually undertake to take all precautions suitable to prevent the independence of the commissioned third parties and employees of the Contractor from being jeopardised. This shall apply in particular to offers made by the Client to employ third parties or to accept orders on its own account.
5. Reporting / Duty to Report
5.1 The Contractor undertakes to report to the Client on the progress of her work, that of her employees and, if applicable, that of third parties commissioned by her.
5.2 The Client shall receive the final report within a reasonable period of time, i.e. two to four weeks, depending on the type and scope of the consulting assignment after completion of the assignment.
5.3 The Contractor shall be free from instructions in the production of the agreed work and shall act at her own discretion and on her own responsibility. She shall not be bound to any particular place of work or to any particular working hours.
6. Protection of Intellectual Property
6.1The copyrights to the works created by the Contractor and her employees and commissioned third parties (in particular offers, reports, analyses, expert opinions, organisational plans, concepts, programs, performance specifications, drafts, calculations, drawings, data carriers, etc.) shall remain with the Contractor. They may be used by the Client during and after termination of the contract exclusively for purposes covered by the contract. The Client shall not be entitled to reproduce and/or distribute the work(s) without the Contractor’s express consent. Under no circumstances shall an unauthorised reproduction/dissemination of the work give rise to any liability on the part of the Contractor – in particular, for example, for the accuracy of the work – vis-à-vis third parties.
6.2Any violation of these provisions by the Client shall entitle the Contractor to terminate the contract immediately and prematurely and to assert other legal claims, in particular for injunctive relief and/or damages.
7.1 The Contractor shall be entitled and obliged, irrespective of fault, to remedy any inaccuracies and defects in her services that become known within the scope of the statutory warranty. The Contractor shall inform the Client thereof without delay.
7.2 This claim by the Client shall expire six months after the respective service has been rendered.
8. Liability / Compensation
8.1 The Contractor shall be liable to the Client for damages – except for personal injury – only in the event of gross negligence (intent or gross negligence). This shall also apply mutatis mutandis to damages caused by third parties engaged by the Contractor.
8.2 Claims for damages by the Client may only be asserted in court within six months of knowledge of the damage and the damaging party, but at the latest within three years of the event giving rise to the claim.
8.3 The Client shall provide evidence that the damage was caused by the Contractor.
8.4 If the Contractor performs the work with the assistance of third parties and warranty and/or liability claims arise against these third parties in this context, the Contractor shall assign these claims to the Client. In this case, the Client shall have priority over these third parties.
9. Confidentiality / Data Protection
9.1 The Contractor undertakes to maintain absolute confidentiality with regard to all business matters of which she becomes aware, in particular business and trade secrets as well as any information she receives about the type, scope of operation and practical activities of the Client.
9.2 Furthermore, the Contractor undertakes to maintain confidentiality vis-à-vis third parties regarding the entire content of her work as well as all information and circumstances that she has received in connection with the creation of her work, in particular also regarding the data of the Client’s clients.
9.3 The Contractor shall be released from the duty of confidentiality vis-à-vis any assistants and deputies she uses. However, the Contractor shall transfer the duty of confidentiality to them in full and shall be liable for their breach as for her own breach.
9.4 The duty of confidentiality shall extend indefinitely beyond the end of the contract. Exceptions exist in the case of legally stipulated obligations to testify.
9.5 The Contractor shall be entitled to process personal data entrusted to it within the scope of the purpose of the contract. The Client shall guarantee the Contractor that all necessary measures have been taken for this purpose, in particular those within the meaning of the Data Protection Act, such as declarations of consent by the persons concerned.
10.1 After completion of the agreed work, the Contractor shall receive a fee in accordance with the agreement between the Client and the Contractor. The Contractor shall be entitled to issue interim invoices in accordance with the progress of the work and to demand payment on account in accordance with the respective progress. The fee shall be due upon presentation of the invoice by the Contractor.
10.2 The Contractor shall issue an invoice with all legally required features entitling the Contractor to deduct input tax.
10.3 Any cash expenses, out-of-pocket expenses, travel expenses, etc. incurred shall be reimbursed by the Client upon presentation of an invoice by the Contractor.
10.4 If the agreed work is not performed for reasons attributable to the Client or due to a justified premature termination of the contract by the Contractor, the Contractor shall retain the right to payment of the entire agreed fee less any expenses saved. In the event that an hourly fee has been agreed, the fee shall be paid for the number of hours that could have been expected for the entire agreed work, less the expenses saved. The saved expenses are agreed as a lump sum of 30 percent of the fee for those services which the Contractor has not yet performed by the day of termination of the contract.
10.5 In the event of non-payment of interim invoices, the Contractor shall be released from its obligation to provide further services. However, this shall not affect the assertion of further claims resulting from non-payment.
11. Electronic Invoicing
11.1 The Contractor shall be entitled to send invoices to the Client via e-mail. The Client expressly agrees to the Contractor sending invoices via e-mail.
12. Duration of the Contract
12.1 The contract shall generally end upon completion of the project and the corresponding invoicing, unless a different term has been agreed in the contract.
12.2 Notwithstanding the foregoing, the contract may be terminated by either party at any time for good cause without notice. Good cause shall be deemed to exist in particular
– if a contracting party breaches material contractual obligations, or
– if a contracting party defaults on payment after insolvency proceedings have been instituted, or
– if there are justified doubts regarding the creditworthiness of a contracting party in respect of which no insolvency proceedings have been opened and the latter, at the request of the Contractor, neither makes advance payments nor provides suitable security prior to performance by the Contractor and the poor financial circumstances of the other contracting party were not known at the time the contract was concluded.
13. Final Provisions
13.1 The contracting parties confirm that they have made all statements in the contract conscientiously and truthfully and undertake to notify each other immediately of any changes.
13.2 Amendments to the contract and these GTC must be made in writing, as must any waiver of this formal requirement. Verbal agreements do not exist.
13.3 This contract shall be governed by Austrian substantive law, excluding the conflict of laws rules of private international law and the UN Convention on Contracts for the International Sale of Goods. The place of performance shall be the place of the Contractor’s professional establishment (Vienna). The court at the Contractor’s place of business shall have jurisdiction for disputes.
13.4 In the event of disputes arising from this contract which cannot be settled by mutual agreement, the contracting parties mutually agree to involve registered mediators (ZivMediatG) with a focus on business mediation from the list of the Ministry of Justice for the out-of-court settlement of the conflict. If no agreement can be reached on the selection of the business mediators or on the content, legal steps shall be taken at the earliest one month after the failure of the negotiations.
13.5 In the event of a mediation that has not been concluded or has been terminated, Austrian law shall apply in any legal proceedings that may be instituted. All necessary expenses incurred due to a previous mediation, in particular also those for legal advisors consulted, can be claimed as “pre-litigation costs” in court or arbitration proceedings as agreed.