1. General Principles / Scope of application
1.1 These general terms and conditions apply exclusively to all legal transactions between the principal and the contractor. The version valid at the time of concluding the contract is controlling.
1.2 These general terms and conditions apply to all future contractual relationships, thus also if ancillary agreements do not expressly refer to them.
1.3 Contrary general terms and conditions of the principal are not valid unless they are expressly recognised in writing by the contractor.
1.4 In the event that individual provisions of these general terms and conditions are or become invalid, this does not affect the validity of the remaining provisions and the contracts based on them. The invalid provision is to be replaced by a valid provision that most closely resembles its meaning and economic purpose.
2. Scope of the advisory engagement / Agency
2.1 The scope of a specific engagement will be contractually agreed to in individual cases.
2.2 The contractor is entitled to perform the tasks assigned to it fully or partially through third parties. The payment of the third party is performed exclusively by the contractor. No direct contractual relationship of any kind arises between the third party and the principal.
2.3 The principal is obliged not to enter into a business relationship of any kind with persons or companies used by the contractor in the performance of its contractual obligations during the contractual relationship and until the expiration of three years after termination of the contractual relationship. In particular, the principal will not engage these persons and companies for such or similar advisory services which the contractor also offers.
3. Principal’s duty to inform / Letter of representation
3.1 The principal assures that the organisational framework conditions for the performance of the advisory services at its place of business allow for largely undisturbed work necessary for the rapid progress of the advisory process.
3.2 In addition, the principal will comprehensively inform the Contractor of prior performed and/or current activities, including in other specialist fields.
3.3 The principal assures that the contractor is also provided with all documents necessary for the fulfilment and performance of its advisory services in a timely manner without the need for a special request, and to inform it of all transactions and circumstances which are significant for the performance of the engagement. This also applies to all documents, transactions and circumstances which first become known during the activities of the contractor.
3.4 The principal assures that its employees and the statutory and the established employee representative (Works Council), if applicable, is informed of the activities of the contractor even before it begins its work.
4. Securing independence
4.1 The contract partners are obliged to mutual loyalty.
4.2 The contract partners are mutually obligated to take precautions which are suitable to prevent an endangerment of the independence of the engaged third parties and of the contractor’s employees. In particular, this applies to offers of the principal of employment or the acceptance of engagements on its own account.
5. Reporting / Reporting obligation
5.1 The contractor is obliged to report to the principal on the progress of its work, the work of its employees and, if applicable, the work of engaged third parties.
5.2 The principal receives a final report in due course, if desired, i.e. two to four weeks, depending on the nature of the advisory engagement after conclusion of the contract.
5.3 The contractor is free from directives in the drafting of the agreed to work, and acts according to its own best judgment and its own responsibility. It is not bound to any particular place of work or to any particular time of work.
6. Protection of intellectual property
6.1 Copyrights in the works created by the contractor and its employees and engaged third parties (in particular offers, reports, analyses, expert opinions, organisation plans, programmes, performance specifications, drafts, calculations, drawings, data carriers etc.) remain with the contractor. They may be used by the principal during and after termination of the contractual relationship exclusively for the purposes described in the contract. To this extent, the principal is not entitled to copy and/or disseminate the work (the works) without the express consent of the contractor. In no event will a liability of the contractor arise through an unauthorised copying/dissemination of the work – in particular for the correctness of the work – vis-à-vis third parties.
6.2 A violation by the principal of these provisions entitles the contractor to immediate early termination of the contractual relationship and to assert other statutory rights, in particular for injunctive relief and/or damages.
7. Warranty
7.1 Without regard to fault, the contractor is entitled and obliged to remove errors and defects in its services as they become known. It will notify the principal thereof without delay.
7.2 This rights of the principal lapse six months after performance of the respective service.
8. Liability / Damages
8.1 The contractor is liable to the Principal for damages – except for damages to persons – only in the event of gross culpability (intentional or gross negligence). This also applies analogously to damages that are attributable to third parties engaged by the contractor.
8.2 Damage claims of the principal can be judicially asserted only within six months as of knowledge of the damage and of the injuring party, however, at the latest within three years after the incident upon which the claim is based.
8.3 The principal bears the burden of proof that the damage is attributable to the culpability of the contractor.
8.4 To the extent the contractor performs the work with the assistance of third parties and in this context warranty and/or liability claims vis-à-vis these third parties arise, the contractor assigns these rights to the principal. In this event, the principal will assert its claims primarily against these third parties.
9. Secrecy / Data protection
9.1 The contractor is obliged to unconditional secrecy with regard to all business matters which come to its attention, in particular business and operational secrets as well as all information which it receives regarding the nature, operating scope and practical activities of the principal.
9.2 In addition, the contractor is obliged to maintain secrecy vis-à-vis third parties regarding the entire content of the work, as well as regarding all information and circumstances which it receives in association with the drafting of the work, in particular the data of clients of the principal.
9.3 The contractor is released from the secrecy obligation vis-à-vis any assistants and agents which it makes use of. However, it shall fully impose the secrecy obligation on these parties and is liable for their violations of the secrecy obligation as it is for its own violations.
9.4 The secrecy obligation also extends for an indefinite time after the end of this contractual relationship. Exceptions exist in the event of disclosure obligations provided by statute.
9.5 The contractor is entitled to process personal data provided to it within the framework of the intended purpose of the contractual relationship. The principal warrants the contractor that all necessary measures, in particular those pursuant to the data protection act, for example consent declarations of the data subjects, have been taken.
10. Fee
10.1 After completion of the contract work, the contractor receives a fee in accordance with the agreement between the principal and the contractor. The contractor is entitled to issue interim invoices in accordance with the progress of the work and to request Akonti in accordance with progress. The fee is payable upon invoicing by the contractor.
10.2 The contractor will issue an invoice containing all features required by law and which entitles a deduction of the input tax.
10.3 In addition, the principal will also pay all cash expenditures, allowances, travel expenses, etc. incurred upon submission of the appropriate receipts.
10.4 If the performance of contracted work is not done for reasons attributable to the principal or for reasons which justify an early termination of the contractual relationship by the contractor, the contractor retains the right to payment of the entire contractual fee less saved expenditures. In the event of an agreement on an hourly fee, the fee for the number of hours which would be anticipated for the entire contractual work, less saved expenditures, is payable. It is agreed that the saved expenditures amount to a flat-rate of 30 percent of the fee for the services which the contractor has not yet provided as of the day of termination of the contractual relationship.
10.5 In the event of non-payment of interim invoices, the contractor is released from its obligation to provide further services. The assertion of additional claims resulting from non-payment is thereby not affected.
11. Electronic invoicing
11.1 The contractor is also entitled to send invoices to the principal in electronic form. The principal expressly declares its consent to the sending of invoices in electronic form by the contractor.
12. Duration of the contract
12.1 The contract invariably ends upon the conclusion of the project.
12.2 Not withstanding this, the contract can be rescinded at any time for good cause by either party without compliance with a notice period, if not otherwise agreed. In particular, good cause includes,
if a contract partner has breached material contractual obligations, or
if a contract partner is in payment arrears after commencement of insolvency proceedings, or
if justified doubts exist concerning the creditworthiness of a contract partner, where no insolvency proceedings have commenced, and upon the request of the contractor this party neither makes advance payments nor provides suitable security prior to performance of the contractor and the poor financial circumstances of the other contract partner were not known at the time of concluding the contract.
13. Final provisions
13.1 The contract parties confirm that all statements in the contract have been conscientiously and truthfully made and mutually oblige themselves to provide notification of any changes.
13.2 Amendments to the contract and to these General Terms and Conditions must be made in writing; this also applies to any divergence from this form requirement. There are no oral ancillary agreements.
13.3 Substantive Austrian law is applicable to this contract under exclusion of the reference norms of international private law. Place of performance is the location of the professional establishment of the contractor. The court at the principle place of business of the contractor is competent for disputes.
13.4 In the event of disputes resulting from this contract that cannot be settled amicably between the parties, the contract parties mutually agree to an out-of-court settlement of the conflict through the use of registered mediators (ZivMediatG) with a focus on business mediation selected from the list of the Ministry of Justice. In the event that no consensus can be reached on the selection of the business mediators or in regard to content, legal steps will be commenced at the earliest one month after the failure of the negotiations.
13.5 In the event of mediation which does not come about or which is broken off, Austrian law applies to any commenced judicial proceedings. All necessary expenses incurred due to prior mediation, in particular for engaged legal advisors, can be asserted as “pre-trial costs” according to agreement.