Terms of Service
1.1 All legal transactions between the client and the contractor (management consultant) are governed exclusively by these General Terms and Conditions. In each case, the valid version 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, thus even if this is not explicitly stated in supplementary contracts.
1.3 Conflicting general terms and conditions of the client are invalid unless they are expressly acknowledged in writing by the contractor (management consultant).
1.4 In the event that any provision of these Terms and Conditions should be and / or ineffective, this shall not affect the validity of the remaining provisions and the contracts concluded on their basis. The ineffective one is to be replaced by an effective provision that comes closest to its purpose and economic purpose.
2. Scope of the consulting assignment / substitution
2.1 The scope of a specific consulting contract is contractually agreed in individual cases.
2.2 The contractor (management consultant) is entitled to have the duties incumbent on him completely or partially carried out by third parties. The payment of the third party takes place exclusively by the contractor (management consultant) itself. There is no direct contractual relationship of any kind between the third party and the client.
2.3 The client undertakes not to enter into any business relationship with persons or companies during which the contractor (management consultant) avails himself for the fulfillment of his contractual obligations during and up to the expiration of three years after termination of this contractual relationship. In particular, the client will not entrust these persons and companies with such or similar consulting services that the contractor (management consultant) also offers.
3. Duty of clarification of the client / declaration of completeness
3.1 The client shall ensure that the organizational framework conditions allow for the smoothest possible progress in the advisory process when the advisory service is performed at its place of business.
3.2 The client shall inform the contractor (management consultant) about previous and / or ongoing consultations – also in other fields.
3.3 The client shall ensure that the contractor (management consultant), without his special request, is presented in a timely manner with all documents necessary for the fulfillment and execution of the consultancy contract and that he is informed of all processes and circumstances that are of importance for the execution of the consultancy contract , This also applies to all documents, processes and circumstances that become known only during the activity of the consultant.
3.4 The client shall ensure that his employees and the employee representation (works council) provided for by law and if so set up are already informed by the contractor (business consultant) prior to the start of the work of the contractor.
4. Securing independence
4.1 The contracting parties commit themselves to mutual loyalty.
4.2 The contracting parties mutually undertake to take all precautions which are suitable to prevent endangering the independence of the commissioned third parties and employees of the contractor (management consultant). This applies in particular to offers of the client on employment or the assumption of orders on own account.
5. Reporting / Reporting Obligation
5.1 The contractor (management consultant) undertakes to report on its work, that of its employees and, if applicable, also of the commissioned third parties to the work progress in accordance with the client.
5.2 The final report will be provided to the client in due time, i. two to four weeks, depending on the type of consulting assignment after completion of the contract.
5.3 The contractor (management consultant) is free from instructions in the production of the agreed work, acting at his own discretion and on his own responsibility. He is not tied to any specific work place or time.
6. Protection of intellectual property
6.1 The copyrights of the works created by the contractor (management consultant) and its employees and commissioned third parties (in particular offers, reports, analyzes, expert reports, organization plans, programs, service descriptions, drafts, calculations, drawings, data media, etc.) remain with the contractor (management consultant) , They may only be used by the client during and after termination of the contractual relationship for purposes covered by the contract. The client is not entitled to reproduce and / or distribute the work (the works) without the express consent of the contractor (management consultant). Under no circumstances will an unauthorized duplication / dissemination of the work incur liability of the contractor (management consultant) – in particular for the accuracy of the work – vis-à-vis third parties.
6.2 The breach of these provisions by the customer entitles the contractor (management consultant) to terminate the contractual relationship immediately and to assert other statutory claims, in particular, to avoidance and / or damages.
7.1 The contractor (management consultant) is entitled and obligated, without regard to any fault, to rectify any known inaccuracies and defects in his performance. He will inform the client immediately.
7.2 This claim of the client expires after six months after provision of the respective service.
8. Liability / Damages
8.1 The contractor (business consultant) is liable to the client for damages – except for personal injury – only in case of gross negligence (intent or gross negligence). This also applies mutatis mutandis to damages caused by third parties hired by the contractor.
8.2 Claims for damages by the client may only be asserted in court within six months of becoming aware of the damage and the damaging party, but at the latest within three years after the event giving rise to the claim.
8.3 The client must provide proof that the damage is the result of a fault of the contractor.
8.4 If the contractor (management consultant) performs the work with the help of third parties and in this connection warranty and / or liability claims arise against these third parties, the contractor (management consultant) assigns these claims to the client. In this case, the principal will primarily hold to these third parties.
9. Confidentiality / Privacy
9.1 The contractor (business consultant) is obligated to unconditional silence on all business matters that come to his attention, in particular business and trade secrets, as well as any information he receives about the type, scope of operations and practical activities of the client.
9.2 Furthermore, the contractor (management consultant) undertakes to maintain the confidentiality of 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 the data of clients of the client.
9.3 The contractor (management consultant) is released from the duty of secrecy vis-à-vis any assistants and substitutes he serves. However, he has the obligation of confidentiality to be fully committed to these and is liable for their breach of the confidentiality obligation as for their own violation.
9.4 Confidentiality extends indefinitely even beyond the end of this contractual relationship. Exceptions exist in the case of statutory statements.
9.5 The contractor (management consultant) is entitled to process personal data entrusted to him within the scope of the purpose of the contractual relationship. The client warrants that the contractor has taken all necessary measures, in particular those within the meaning of the Data Protection Act, such as statements of consent of the persons concerned.
10.1 After completion of the agreed work, the contractor (management consultant) receives a fee according to the agreement between the client and the contractor (management consultant). The contractor (business consultant) is entitled to submit interim invoices to the progress of work and to demand appropriate progress for the relevant progress. The fee is due in each case with accounting by the contractor.
10.2 The contractor (management consultant) will issue a respective invoice with all legally required characteristics for the deduction of input tax.
10.3 Incurring out-of-pocket expenses, expenses, travel expenses, etc. shall be additionally reimbursed by the client for invoicing by the contractor (management consultant).
10.4 If the execution of the agreed work is omitted for reasons that lie on the side of the client, or due to a justified premature termination of the contract by the contractor (management consultant), the contractor (management consultant) retains the right to payment of the entire agreed fee less expenses saved , If an hourly fee is agreed, the fee is to be paid for the number of hours expected for the entire agreed work less the expenses saved. The saved expenditures are agreed on a flat-rate basis with 30 per cent of the fee for those services that the contractor has not yet provided by the date of termination of the contract.
10.5 In the event of non-payment of interim invoices, the contractor (management consultant) is released from its obligation to provide further services. The assertion of further claims resulting from non-payment will not be affected by this.
11. Electronic accounting
11.1 The contractor (management consultant) is entitled to submit bills to the client in electronic form. The client expressly agrees to the sending of invoices in electronic form by the contractor (management consultant).
12. Duration of the contract
12.1 This contract ends with the completion of the project.
Nonetheless, the contract may be terminated at any time for good cause by either party without observing a notice period. As an important reason, in particular,
– if a contracting party violates essential contractual obligations or
– if a contracting party is in default of payment after the opening of insolvency proceedings.
– if there are legitimate concerns about the creditworthiness of a counterparty over which no insolvency proceedings have been opened, and the latter fails to make any advance payments or provides adequate security before the contractor’s performance and the bad financial circumstances were unknown to the other contracting party upon conclusion of the contract.
13. Final provisions
13.1 The contracting parties confirm that they have faithfully and truthfully provided all information in the contract and undertake to announce any changes mutually immediately.
13.2 Changes to the contract and these terms and conditions must be in writing; as well as a departure from this formal requirement. Verbal collateral agreements do not exist.
13.3 Substantive Austrian law applies to this contract to the exclusion of the reference norms of private international law. Place of performance is the place of business of the contractor (business consultant). For disputes, the court at the place of business of the contractor (business consultant) is responsible.
The Professional Association for Business Consulting, 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 contract, which can not be settled by mutual agreement, the Parties shall agree by mutual agreement on the out-of-court settlement of the conflict to bring in registered mediators (Civil Mediatry) with the focus on business mediation from the list of the Ministry of Justice. If no agreement can be reached on the selection of economic mediators or content, no legal action will be taken at the earliest one month after the failure of the negotiations.
(2) In the event of mediation which has not been concluded or terminated, Austrian law shall apply in any litigation initiated.
All necessary expenses incurred as a result of prior mediation, in particular those for legal advisors, may, as agreed, be asserted in a court or arbitration proceeding as “pre-litigation costs”.