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General Terms and Conditions for Business Consulting

1 General Principles / Scope of Application

 

1.1 For all legal transactions between the client and the contractor (business consultant) - hereinafter only the term contractor is used - these General Terms and Conditions apply exclusively. The version valid at the time the contract is concluded is decisive.

 

1.2 These general terms and conditions also apply to all future contractual relationships, even if they are not expressly referred to in additional contracts.

 

1.3 Conflicting general terms and conditions of the client are invalid unless they are expressly recognized in writing by the contractor.

 

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 of them. The ineffective provision is to be replaced by an effective provision that comes closest in meaning and economic purpose.

 

2 Scope of the Consulting Assignment / Substitution

 

2.1 The scope of a specific consulting assignment is contractually agreed on a case-by-case basis.

 

2.2 The contractor is entitled to have the tasks incumbent on him/her performed in whole or in part by third parties. The payment of the third party is made exclusively by the contractor(s). 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 type of business relationship with persons or companies that the contractor uses to fulfill its contractual obligations during or for a period of three years after the end of this contractual relationship. In particular, the client will not commission these persons and companies with such or similar consulting services that the contractor also offers.

 

3. Obligation of the Client to Provide Information / Declaration of Completeness

 

3.1 The client ensures that the organizational framework conditions when fulfilling the consulting assignment at his/her place of business allow work to be carried out as undisturbed as possible, which is conducive to the rapid progress of the consulting process.

 

3.2 The client will also comprehensively inform the contractor about previous and/or ongoing consultations - also in other specialist areas.

 

3.3 The client ensures that the contractor is provided with all documents necessary for the fulfillment and execution of the consulting contract in a timely manner, even without his/her special request, and that he/she is informed of all processes and circumstances that are necessary for the execution of the consulting assignment are important. This also applies to all documents, processes and circumstances that only become known during the work of the consultant.

 

3.4 The client shall ensure that his/her employees and the employee representation (works council) provided for by law and set up if necessary are informed by the contractor before the start of his/her work.

 

4. Securing Independence

 

4.1 The contracting parties undertake to be loyal to one another.

 

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 from being endangered. This applies in particular to offers by the client for employment or the acceptance of orders for their own account.

 

5. Reporting / Duty to Report

 

5.1 The contractor undertakes to report on his/her work, that of his/her employees and, if applicable, also the commissioned third parties according to the work progress according to the client.

 

5.2 The client will 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 is not subject to instructions when producing the agreed work, acts at his own discretion and on his own responsibility. He/she is not tied to a specific place of work or specific working hours.

 

6. Intellectual Property Protection

 

6.1 The copyrights to the works created by the contractor and his/her employees and commissioned third parties (in particular offers, reports, analyses, expert opinions, organization charts, programs, service descriptions, drafts, calculations, drawings, data carriers, etc.) remain with the contractor. They may only be used by the client during and after the end 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 contractor. Under no circumstances will the contractor be liable to third parties as a result of unauthorized duplication/distribution of the work - in particular for the correctness of the work.

 

6.2 The breach of these provisions by the client entitles the contractor 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 contractor is entitled and obliged, regardless of fault, to remedy any inaccuracies and defects that become known within the scope of the statutory warranty on his/her service. He/she will inform the client of this immediately.

 

7.2 This claim of the client expires six months after the respective service has been rendered.

 

8. Liability / Damages

 

8.1 The contractor is liable to the client for damage - with the exception of personal injury - only in the event of gross negligence (intent or gross negligence). This also applies mutatis mutandis to damage 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 becoming aware of the damage and the damaging party, but no later than within three years of the event giving rise to the claim.

 

8.3 The customer must provide evidence that the damage is due to the fault of the contractor.

 

8.4 If the contractor(s) performs the work with the help of third parties and warranty and/or liability claims arise against these third parties in this context, the contractor(s) assigns these claims to the client(s). In this case, the client will primarily rely on these third parties.

 

9. Confidentiality / Data Protection

 

9.1 The contractor undertakes to maintain absolute confidentiality about all business matters of which he/she becomes aware, in particular business and trade secrets, as well as any information that he/she receives about the type, scope of operations and practical activities of the client .

 

9.2 Furthermore, the contractor undertakes to keep the entire content of the work and all information and circumstances that he/she received in connection with the creation of the work, in particular the data of clients of the client to maintain secrecy towards third parties.

 

9.3 The contractor is released from the duty of confidentiality towards any assistants and deputies he/she uses. However, he/she has to transfer the confidentiality obligation to them completely and is liable for their violation of the confidentiality obligation as for a personal violation.

 

9.4 The confidentiality obligation extends beyond the end of this contractual relationship. Exceptions exist in the case of statutory obligations to provide information.

 

9.5 The contractor is entitled to process personal data entrusted to him/her within the scope of the purpose of the contractual relationship. The client warrants to the contractor that all necessary measures, in particular those within the meaning of the Data Protection Act, such as declarations of consent by those affected, have been taken.

 

10. Fee

 

10.1 After completion of the agreed work, the contractor(s) will receive a fee according to the agreement between the client and the contractor. The contractor is entitled to issue interim accounts according to the progress of work and to request advance payments corresponding to the respective progress. The fee is due upon invoicing by the contractor(s).

 

10.2 The contractor will issue an invoice with all legally required features that entitles him/her to deduct input tax.

 

10.3 Any cash outlays, expenses, travel expenses, etc. are to be additionally reimbursed by the client against the contractor’s invoice.

 

10.4 If the agreed work is not carried out for reasons on the part of the customer or due to a justified premature termination of the contractual relationship by the contractor, the contractor retains the right to payment of the total agreed fee minus saved expenses. 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 expenses saved are agreed at a flat rate of 30 percent of the fee for those services that the contractor has not yet provided by the day the contractual relationship ends.

 

10.5 In the event of non-payment of interim invoices, the contractor is released from his/her obligation to provide further services. However, this does not affect the assertion of further claims resulting from non-payment.

 

11. Electronic Invoicing

 

11.1 The contractor is entitled to send the client invoices in electronic form. The client expressly agrees to the sending of invoices in electronic form by the contractor.

 

12. Duration of Contract

 

12.1 This contract generally ends with the completion of the project and the corresponding accounting.

 

12.2 Irrespective of this, the contract can be terminated by either party at any time for important reasons without observing a period of notice. An important reason is, in particular,

 

  • if a contracting party breaches material contractual obligations, or

  • if a contracting party defaults on payment after the opening of insolvency proceedings, or

  • if there are justified concerns about the creditworthiness of a contracting party for which no insolvency proceedings have been opened and this party does not make any advance payments at the request of the contractor or provide suitable security before the contractor performs and the poor financial situation 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 provided all information in the contract conscientiously and truthfully and undertake to notify each other of any changes immediately.

 

13.2 Changes to the contract and these GTC must be in writing; as well as a waiver of this formal requirement. Verbal collateral agreements do not exist.

 

13.3 Substantive Austrian law is applicable to this contract, excluding the reference norms of private international law and the UN Sales Convention. The place of performance is the place of business establishment of the contractor. The court at the place of business of the contractor is responsible for disputes.

 

 

The Business Consulting, Accounting and Information Technology Division recommends the following mediation clause as a business-friendly means of dispute resolution:

 

(1) In the event of disputes arising from this contract that 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, this will take place 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 aborted, Austrian law applies to any court proceedings that may have been initiated.

All necessary expenses incurred as a result of previous mediation, in particular those for legal advisers consulted, can be claimed as “pre-trial costs” in court or arbitration proceedings as agreed.

Member of the Austrian Economic Chambers, as of June 2021

 

Professional Association Management Consulting,
Accounting and Information Technology

 

Wiedner Hauptstrasse 63

A-1045 Vienna

T: +43-(0)590900-3540

F: +43-(0)590900-3178

Email: ubit@wko.at

http://www.ubit.at

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