Last updated on: October, 2020
Preliminary note: The text of these General Terms and Conditions has been automatically translated for information purposes only. In principle, the wording of the German version is applicable.
- General principles / Scope of application
1.1 All legal transactions between the client and the contractor are exclusively subject to these General Terms and Conditions. The version valid at the time of conclusion of the contract shall apply.
1.2 These General Terms and Conditions of Business shall also apply to all future contractual relationships, thus also if no express reference is made to them in the case of supplementary contracts.
1.3 Any conflicting General Terms and Conditions of Business of the customer shall be invalid unless they are expressly accepted by the contractor in writing.
1.4 In the event that individual provisions of these General Terms and Conditions of Business are 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 the meaning and economic purpose of the invalid provision.
- Scope of the consulting order / representation
2.1 The scope of a specific consulting assignment will be contractually agreed in each individual case.
2.2 The contractor shall be entitled to have the tasks incumbent upon him performed in whole or in part by third parties. Payment of the third party shall be made exclusively by the contractor himself. No direct contractual relationship of any kind whatsoever shall arise between the third party and the customer.
2.3 The customer undertakes not to enter into any kind of business relationship whatsoever with persons or companies of which the contractor makes use for the fulfilment of his contractual obligations during and until the expiry of three years after the termination of this contractual relationship. In particular, the customer shall not commission these persons and companies with the same or similar consulting services as those offered by the contractor.
- Obligation of the customer to provide information / declaration of completeness
3.1 The client shall ensure that the organizational conditions at his place of business during the performance of the consulting assignment allow for undisturbed work that promotes the rapid progress of the consulting process.
3.2 The customer shall also inform the contractor comprehensively about previously performed and/or ongoing consulting services – also in other specialist areas.
3.3 The customer shall ensure that the contractor is provided with all documents necessary for the performance and execution of the consulting order in a timely manner, even without the contractor’s special request, and that the customer is informed of all processes and circumstances which are of importance for the execution of the consulting order. This also applies to all documents, procedures and circumstances which only become known during the consultant’s work.
3.4 The Principal shall ensure that his employees and the employee representation (works council) provided for by law and, if applicable, established by the Consultant, are informed by the Consultant prior to the commencement of the Consultant’s activities.
- Ensuring independence
4.1 The contracting parties commit themselves to mutual loyalty.
4.2 The contracting parties undertake to take all precautions suitable to prevent the independence of the third parties and employees of the contractor from being endangered. This applies in particular to offers of the customer for employment or the acceptance of orders on his own account.
- Reporting / reporting obligation
5.1 The contractor undertakes to report to the customer on his work, that of his employees and, if applicable, also that of third parties commissioned by him, 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 nature of the consultancy assignment, after completion of the assignment.
5.3 The contractor is not bound by instructions in the production of the agreed work, acts at his own discretion and on his own responsibility. He is not bound to any particular place of work or working hours.
- Protection of intellectual property
6.1 The copyrights to the works created by the contractor and his employees and commissioned third parties (in particular offers, reports, analyses, expert opinions, organization charts, programs, performance descriptions, drafts, calculations, drawings, data carriers, etc.) remain with the contractor. They may be used by the client during and after termination of the contractual relationship exclusively for purposes covered by the contract. In this respect, the Customer shall not be entitled to reproduce and/or distribute the work(s) without the express consent of the Contractor. Under no circumstances shall any unauthorized reproduction/dissemination of the work give rise to any liability on the part of the Contractor – in particular, for example, for the correctness of the work – vis-à-vis third parties.
6.2 Any violation of these provisions by the customer shall entitle the contractor to terminate the contractual relationship prematurely with immediate effect and to assert other statutory claims, in particular for injunctive relief and/or damages.
7.1 The contractor shall be entitled and obliged, irrespective of fault, to remedy any incorrectness and defects in his performance which become known. He shall inform the customer of this without delay.
7.2 This claim of the customer expires six months after the respective service has been rendered.
- Liability / compensation
8.1 The contractor is liable to the customer for damages – except for personal injury – only in the case of gross negligence (intent or gross negligence). This shall also apply analogously to damages caused by third parties called in by the contractor.
8.2 Claims for damages by the customer 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 In each case, the customer shall provide evidence that the damage is attributable to a fault of the contractor.
8.4 If the contractor performs the work with the assistance of third parties and if in this connection warranty and/or liability claims arise against these third parties, the contractor shall assign these claims to the customer. In this case the customer shall give priority to these third parties.
- Secrecy / data protection
9.1 The contractor undertakes to maintain absolute silence about all business matters which come to his knowledge, in particular business and trade secrets and any information which he receives about the type, scope of business and practical activities of the customer.
9.2 Furthermore, the contractor undertakes to maintain secrecy towards third parties with regard to the entire content of the work as well as all information and circumstances which he has received in connection with the production of the work, in particular also with regard to the data of clients of the customer.
9.3 The contractor shall be released from the obligation of secrecy towards any assistants and deputies he uses. However, he shall completely transfer the obligation of secrecy to them and shall be liable for their violation of the obligation of secrecy as for his own violation.
9.4 The obligation of secrecy shall extend indefinitely beyond the end of this contractual relationship. Exceptions exist in the case of statutory obligations to give evidence.
9.5 The contractor is entitled to process personal data entrusted to him within the scope of the purpose of the contractual relationship. The customer guarantees the contractor that all necessary measures have been taken for this purpose, in particular those in the sense 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 is entitled to submit interim invoices according to the progress of work and to demand payment on account according to the respective progress. The fee is due upon receipt of the invoice by the contractor.
10.2 The contractor will issue an invoice with all legally required features entitling the customer to deduct input tax.
10.3 Any cash outlays, expenses, travel costs, etc. incurred shall be reimbursed additionally by the customer against presentation of the invoice by the contractor.
10.4 If the agreed work is not performed for reasons on the part of the customer or due to a justified premature termination of the contractual relationship by the contractor, the contractor shall retain the right to payment of the entire agreed fee less expenses saved. In the event of an agreement on an hourly fee, the fee shall be paid for the number of hours that could be expected for the entire agreed work, less the saved expenses. The saved expenses are agreed at a flat rate of 30 percent of the fee for those services which the contractor has not yet provided by the date of termination of the contractual relationship.
10.5 In the event of non-payment of interim invoices, 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.
- Electronic invoicing
11.1 The contractor is entitled to send invoices to the customer also in electronic form. The customer expressly agrees to the sending of invoices in electronic form by the contractor.
- Duration of the contract
12.1 This Agreement shall generally end upon completion of the project.
12.2 Notwithstanding the foregoing, the Agreement may be terminated at any time for good cause by either party without notice. Good cause shall be deemed to include in particular
- if a contractual partner violates essential contractual obligations or
- if a contractual partner is in default of payment after the opening of insolvency proceedings.
- if there are justified doubts regarding the creditworthiness of a contractual partner on whom no insolvency proceedings have been opened and who, at the request of the Contractor, neither makes advance payments nor provides suitable security before the Contractor makes payment and the poor financial circumstances were not known to the other contractual partner at the time of conclusion of the contract
- Final provisions
13.1 The contracting parties confirm that all information in the contract has been provided conscientiously and truthfully and undertake to notify each other immediately of any changes.
13.2 Changes to the contract and these GTC must be made in writing; likewise any departure from this formal requirement. Oral collateral agreements do not exist.
13.3 This contract shall be governed by Austrian substantive law to the exclusion of the rules of conflict of laws. The place of performance shall be the place of the contractor’s professional establishment. The court at the contractor’s place of business shall have jurisdiction for any disputes.
The Professional Association for Management Consultancy, Accounting and Information Technology recommends the following mediation clause as a business-friendly means of settling disputes:
(1) In the event of disputes arising from this contract which cannot be settled by mutual agreement, the parties to the contract agree by mutual agreement to call in registered mediators (ZivMediatG) with the 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 business mediators or the content of the mediation
will be announced at the earliest one month after the failure of the negotiations
legal action initiated.
(2) In the event that mediation does not take place or is broken off, Austrian law shall apply in any legal proceedings that may be initiated.
All necessary expenses incurred as a result of previous mediation, in particular also those for legal advisors called in, can be claimed as “pre-litigation costs” in court or arbitration proceedings as agreed.