General Terms and Conditions V4.0, Status 2017
Based on the GENERAL TERMS AND CONDITIONS for Management Consultants of the Professional Association for Management Consulting, Accounting and Information Technology
of the Austrian Federal Economic Chamber
1. general principles / scope of application
1) These General Terms and Conditions shall apply exclusively to all legal transactions between the Client and the Contractor. The version valid at the time of the conclusion of the contract shall be authoritative in each case.
2) These General Terms and Conditions shall also apply to all future contractual relationships, thus even if no express reference is made to them in the case of additional contracts.
3) Conflicting General Terms and Conditions of the Customer shall be invalid unless expressly acknowledged in writing by the Contractor.
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 consulting assignment / deputization
1) The scope of a specific consulting assignment shall be contractually agreed in each individual case.
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 itself. No direct contractual relationship whatsoever shall arise between the third party and the Customer.
3) The Customer 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 and up to the expiry of three years after the termination of this contractual relationship. In particular, the Customer shall not commission these persons and companies with such or similar consulting services that are also offered by the Contractor.
3. Client’s Duty of Clarification / Declaration of Completeness
1) The Principal shall ensure that the organizational framework conditions during the fulfillment of the consulting assignment at its place of business allow the Contractor to work as undisturbed as possible in a manner conducive to the rapid progress of the consulting process.
2) The Principal shall also inform the Contractor comprehensively about previously performed and/or ongoing consultations — also in other areas of expertise.
3) The Principal shall ensure that the Agent is provided with all documents necessary for the fulfillment and execution of the consulting assignment in a timely manner, even without the Agent’s special 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 work of the Consultant.
4) The Principal 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 even before they commence.
4. securing independence
1) The contracting parties undertake to be loyal to each other.
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 (management consultant) from being jeopardized. This applies in particular to offers made by the client for employment or the assumption of orders on its own account.
5. Reporting / Duty to Report
1) The Contractor undertakes to report to the Customer on its work, that of its employees and, if applicable, that of commissioned third parties in accordance with the progress of the work.
2) The Principal shall receive the final report within a reasonable period of time, i.e. two to four weeks, depending on the type of consulting order after completion of the order.
3) The Contractor shall be free from instructions in the production of the agreed work, shall act at his own discretion and on his own responsibility. He is not bound to any particular place of work or working hours.
6. protection of intellectual property
1) The copyrights to the works created by the Contractor 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 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 Client shall not be entitled to reproduce and/or distribute the work(s) without the express consent of the Contractor (Management Consultant). Under no circumstances shall an unauthorized duplication/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.
2) The Client’s violation of these provisions shall entitle the Contractor to immediately terminate the contractual relationship prematurely and to assert other legal claims, in particular for injunctive relief and/or damages.
7. warranty
1) The Contractor shall be entitled and obliged, irrespective of fault, to remedy any inaccuracies and defects in its performance that become known. The Contractor shall inform the Customer thereof without undue delay.
2) This claim of the Customer shall expire six months after the respective service has been rendered.
8. liability / compensation
1) The Contractor shall be liable to the Customer for damages — except for personal injuries — only in case of gross negligence (intent or gross negligence). This shall also apply mutatis mutandis to damages attributable to third parties engaged by the Contractor.
2) Claims for damages by the Customer 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.
3) The Customer shall in each case prove that the damage is due to the fault of the Contractor.
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 connection, the Contractor shall assign these claims to the Customer. In this case, the Customer shall give priority to these third parties.
9. confidentiality / data protection
1) The Contractor undertakes to maintain absolute silence about all business matters of which it becomes aware, in particular business and trade secrets as well as any information it receives about the nature, scope of operation and practical activities of the Client.
2) Furthermore, the Contractor undertakes to maintain secrecy vis-à-vis third parties about the entire content of the Work as well as all information and circumstances which he has received in connection with the preparation of the Work, in particular also about the data of clients of the Principal.
3) The Contractor shall be released from the obligation to maintain secrecy with respect to any assistants and substitutes of which he makes use. However, he shall fully transfer the duty of confidentiality to them and shall be liable for their violation of the duty of confidentiality as for his own violation.
4) The obligation to maintain secrecy shall extend indefinitely beyond the end of this contractual relationship. Exceptions exist in the case of legally stipulated obligations to testify.
5) The Contractor shall be entitled to process personal data entrusted to it within the scope of the purpose of the contractual relationship. The Customer shall warrant to 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. honorarium
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 in each case upon presentation of the invoice by the Contractor.
2) The Contractor shall issue an invoice with all legally required features entitling the Contractor to deduct input tax.
3) Any cash expenses, out-of-pocket expenses, travel expenses, etc. incurred shall be additionally reimbursed by the Customer upon presentation of an invoice by the Contractor.
4) If the agreed work is not performed for reasons on the part of the Client 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 any expenses saved. In the event that an hourly fee has been agreed upon, the fee shall be paid for that number of hours that could have been expected for the entire work agreed upon, 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 date of termination of the contractual relationship.
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 the non-payment.
11. electronic invoicing
1) The Contractor shall be entitled to send invoices to the Customer also in electronic form. The Customer expressly agrees to the Contractor sending invoices in electronic form.
12. duration of the contract
1) This contract ends in principle with the completion of the project.
2) Notwithstanding this, the contract may be terminated at any time for good cause by either party without notice. Good cause shall be deemed to exist in particular
- 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 about the creditworthiness of a contractual partner for whom insolvency proceedings have not been opened and the contractual partner, 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 were not known to the other contractual partner at the time the contract was concluded.
were not known to the other contracting party at the time the contract was concluded.
13. final clauses
1) The contracting parties confirm that they have provided all information in the contract conscientiously and truthfully and undertake to notify each other immediately of any changes.
2) Amendments to the contract and these General Terms and Conditions must be made in writing, as must any waiver of this formal requirement. Verbal collateral agreements do not exist.
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 professional establishment. The court at the Contractor’s place of business shall be responsible for disputes.
4) In case of disputes arising from this contract which cannot be settled by mutual agreement, the contracting parties mutually agree to involve registered mediators (ZivMediatG) specializing in 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 action shall be taken at the earliest one month after the failure of the negotiations.
5) In the event that mediation does not take place or is 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 a legal advisor, can be claimed as “pre-litigation costs” in court or arbitration proceedings as agreed.