1 General principles / scope of application
1.1 These General Terms and Conditions shall apply exclusively to all legal transactions between the Principal and the Agent (Management Consultant). The version valid at the time of the conclusion of the contract shall be authoritative in each case.
1.2 These General Terms and Conditions of Business shall also apply to all future contractual relationships, thus even if no express reference is made to them in the case of additional contracts.
1.3 Conflicting general terms and conditions of the Client shall be invalid, unless they are expressly accepted in writing by the Agent (Management Consultant).
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 that comes as close as possible to its meaning and economic purpose.
2. scope of the advisory mandate / deputisation
2.1 The scope of a specific consulting assignment shall be contractually agreed on a case-by-case basis.
2.2 The Agent (Management Consultant) 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 Agent (Management Consultant) himself. No direct contractual relationship whatsoever shall arise between the third party and the Principal.
2.3 The Principal undertakes not to enter into any business relationship whatsoever with persons or companies used by the Agent (Management Consultant) for the performance of its contractual obligations during or up to three years after the termination of this contractual relationship. In particular, the Principal shall not commission these persons and companies with such or similar consulting services that the Agent (Management Consultant) also offers.
3. the client's duty of disclosure / declaration of completeness
3.1 The Client shall ensure that the organisational framework conditions for the performance of the consulting assignment at its place of business permit work that is as undisturbed as possible and conducive to the rapid progress of the consulting process.
3.2 The Principal shall also inform the Agent (Management Consultant) comprehensively about previously performed and/or ongoing consultations - also in other specialist areas.
3.3 The Client shall ensure that the Agent (Management Consultant) is provided with all documents required for the fulfilment and execution of the consulting assignment in a timely manner, even without the Agent's specific request, and that the Agent 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 during the Consultant's activities.
3.4 The Client shall ensure that its employees and the employee representation (works council) provided for by law and established, if any, are informed of the Contractor's (Management Consultant's) activities before they commence.
4. safeguarding independence
4.1 The contracting parties undertake to be loyal to each other.
4.2 The contracting parties mutually undertake to take all precautions that are suitable to prevent the independence of the commissioned third parties and employees of the contractor (management consultant) from being endangered. This shall apply in particular to offers made by the Client for employment or the acceptance of orders on its own account.
5. reporting / reporting obligation
5.1 The Agent (Management Consultant) undertakes to report to the Principal on his work, that of his employees and, if applicable, that of commissioned third parties, in accordance with the progress of the work.
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 of consulting assignment, after completion of the assignment.
5.3 The Contractor (Management Consultant) shall not be bound by instructions in the production of the agreed work and shall act at his own discretion and on his own responsibility. He shall not be bound to any particular place of work and no particular working hours.
6. protection of intellectual property
6.1 The copyrights to the works created by the Agent (Management Consultant) and its employees and commissioned third parties (in particular offers, reports, analyses, expert opinions, organizational plans, programs, performance descriptions, drafts, calculations, drawings, data carriers, etc.) shall remain with the Agent (Management Consultant). They may be used by the Principal during and after termination of the contractual relationship exclusively for purposes covered by the contract. In this respect, the Principal shall not be entitled to reproduce and/or distribute the work(s) without the express consent of the Agent (Management Consultant). Under no circumstances shall an unauthorized reproduction/dissemination of the work give rise to any liability on the part of the Contractor (Management Consultant) - in particular, for example, for the correctness of the work - vis-à-vis third parties.
6.2 The Client's breach of these provisions shall entitle the Agent (Management Consultant) to terminate the contractual relationship immediately and prematurely and to assert other legal claims, in particular for injunctive relief and/or damages.
7. warranty
7.1 The Agent (Management Consultant) shall be entitled and obliged, irrespective of fault, to remedy any inaccuracies and defects in its services that become known. He shall inform the Client of this without delay.
7.2 This claim of the client expires after six months after the respective service has been rendered.
8 Liability / Compensation
8.1 The Agent (Management Consultant) shall be liable to the Principal 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 Agent.
8.2 Claims for damages by the client can 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 must in each case provide evidence that the damage is attributable to the fault of the Contractor.
8.4 If the Agent (Management Consultant) performs the work with the assistance of third parties and warranty and/or liability claims arise against these third parties in this context, the Agent (Management Consultant) shall assign these claims to the Principal. In this case, the Principal shall have priority over these third parties.
9. secrecy / data protection
9.1 The Agent (Management Consultant) undertakes to maintain absolute secrecy about all business matters that come to his knowledge, in particular business and trade secrets as well as any information that he receives about the nature, scope of operations and practical activities of the Principal.
9.2 Furthermore, the Agent (Management Consultant) undertakes to maintain secrecy vis-à-vis third parties regarding the entire content of the work as well as all information and circumstances which he has received in connection with the creation of the work, in particular also regarding the data of clients of the Principal.
9.3 The Agent (Management Consultant) shall be released from the duty of confidentiality vis-à-vis any assistants and deputies he may use. However, he shall transfer the duty of confidentiality to them in full and shall be liable for their breach of the duty of confidentiality as for his own breach.
9.4 The duty of confidentiality shall extend indefinitely beyond the end of this contractual relationship. Exceptions exist in the case of legally stipulated obligations to testify.
9.5 The Agent (Management Consultant) shall be entitled to process personal data entrusted to it within the scope of the purpose of the contractual relationship. The Principal shall guarantee the Agent 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. fee
10.1 After completion of the agreed work, the Agent (Management Consultant) shall receive a fee in accordance with the agreement between the Principal and the Agent (Management Consultant). The Agent (Management Consultant) 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 in each case upon presentation of the invoice by the Agent.
10.2 The Contractor (Management Consultant) shall in each case issue an invoice entitling the Client to deduct input tax and containing all legally required features.
10.3 Any cash outlays, expenses, travel costs, etc. incurred shall be reimbursed additionally by the client against invoicing by the contractor (management consultant).
10.4 If the agreed work is not performed for reasons attributable to the Principal or due to justified premature termination of the contractual relationship by the Agent (Management Consultant), the Agent (Management Consultant) 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 expenses saved are agreed as a lump sum of 30 percent of the fee for those services which the Contractor has not yet performed by the date of termination of the contractual relationship.
10.5 In the event of non-payment of interim invoices, the Agent (Management Consultant) 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 Agent (Management Consultant) shall be entitled to send invoices to the Principal also in electronic form. The Principal expressly agrees to the Contractor (Management Consultant) sending invoices in electronic form.
12. duration of the contract
12.1 This contract ends in principle with the completion of the project.
12.2 Notwithstanding the foregoing, the contract may be terminated by either party at any time for good cause without notice. Good cause shall in particular be deemed to be,
- if a contractual partner violates essential contractual obligations or
- if a contractual partner defaults on payment after insolvency proceedings have been opened.
- if there are justified doubts regarding the creditworthiness of a contractual partner in respect of whom insolvency proceedings have not been opened and the contractual partner does not make advance payments at the request of the contractor or provide suitable security prior to performance by the contractor and the poor financial circumstances were 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 the information 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; likewise any waiver of this formal requirement. Verbal subsidiary agreements do not exist.
13.3 This contract shall be governed by Austrian substantive law, excluding the conflict-of-law rules of private international law. The place of performance shall be the place of the Contractor's (Management Consultant's) place of business. The court at the place of business of the contractor (management consultant) shall be responsible for disputes.
The Professional Association of Management Consultancy, Accounting and Information Technology recommends the following mediation clause as a business-friendly means of dispute resolution:
(1) In the event of disputes arising from this Agreement which cannot be settled by mutual agreement, the Contracting Parties mutually agree to involve registered mediators (ZivMediatG) specialising in commercial 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 commercial mediators or on the content of the dispute
at the earliest one month after the breakdown of the negotiations.
legal action has been taken.
(2) In the event of a mediation which has not been concluded or which has been terminated, Austrian law shall apply in any court proceedings which may be instituted.
All necessary expenses incurred as a result of prior mediation, in particular also those for legal advisors consulted, can be claimed as "pre-litigation costs" in court or arbitration proceedings as agreed.
