Allgemeine Geschäftsbedingungen für Unternehmensberatung, Stand Juni 2021
General Terms and Conditions for Business Consulting, as of June 2021
1. 1. General Principles / Scope of Application:
1.1 For all legal transactions between the client and the contractor (business consultant) – hereinafter referred to as the contractor – these General Terms and Conditions shall exclusively apply. The version valid at the time of the contract conclusion shall be decisive.
1.2 These General Terms and Conditions shall also apply to all future contractual relationships, even if they are not explicitly referenced in supplementary agreements.
1.3 Conflicting General Terms and Conditions of the client shall be invalid unless expressly acknowledged in writing by the contractor.
1.4 Should individual provisions of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions or the contracts concluded based on them. The invalid provision shall be replaced by a valid provision that comes closest in meaning and economic purpose.
2. Scope of the Consulting Contract / Representation:-
2.1 The scope of a specific consulting contract shall be agreed upon in each individual case.
2.2 The contractor is entitled to have the tasks assigned to them performed in whole or in part by third parties. The payment to the third party shall be made exclusively by the contractor. No direct contractual relationship of any kind shall arise between the third party and the client.
2.3 The client agrees not to enter into any business relationship of any kind with individuals or companies that the contractor engages to fulfill their contractual obligations, both during and for a period of three years after the termination of this contractual relationship. The client will not commission these individuals or companies, in particular, with similar or related 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 conditions at their business premises allow for undisturbed work, facilitating the swift progress of the consulting process during the fulfillment of the consulting contract.
3.2 The client will also fully inform the contractor about any prior or ongoing consultations – including those in other areas of expertise.
3.3 The client ensures that the contractor is provided with all necessary documents for the fulfillment and execution of the consulting contract in a timely manner, even without a specific request. The client will also inform the contractor of all processes and circumstances that are relevant to the execution of the consulting contract. This applies to all documents, processes, and circumstances that only become known during the contractor’s work.
3.4 The client ensures that their employees and the legally required and, if applicable, established employee representation (works council) are informed by the contractor before the contractor begins their work.
4. Ensuring Independence::-
4.1 The contracting parties agree to mutual loyalty.
4.2 The contracting parties mutually agree to take all measures necessary to prevent any threat to the independence of the third parties and employees of the contractor. This applies particularly to any offers by the client for employment or the assumption of contracts on their own account.
5. Reporting / Reporting Obligation:-
5.1 The contractor agrees to report to the client on their own work, the work of their employees, and, if applicable, the work of third parties engaged, in accordance with the progress of the work.
5.2 The final report will be provided to the client within a reasonable time, i.e., two to four weeks, depending on the nature and scope of the consulting contract, after the completion of the assignment.
5.3 The contractor is free from instructions in the creation of the agreed work, acting at their own discretion and responsibility. They are not bound to any specific workplace or working hours.
6. Protection of Intellectual Property::-
6.1 The copyright to works created by the contractor and their employees or commissioned third parties (including offers, reports, analyses, expert opinions, organizational plans, programs, specifications, drafts, calculations, drawings, data carriers, etc.) remains with the contractor. These works may only be used by the client during and after the termination of the contractual relationship for the purposes covered by the contract. The client is not entitled to reproduce and/or distribute the work(s) without the explicit consent of the contractor. In no case shall unauthorized reproduction/distribution of the work create any liability for the contractor, particularly with regard to the accuracy of the work, towards third parties.
6.2 A violation of these provisions by the client entitles the contractor to immediately terminate the contractual relationship prematurely and to assert other legal claims, particularly for injunctive relief and/or damages.
7. Warranty:-
7.1 The contractor is entitled and obligated, regardless of fault, to rectify any inaccuracies and defects in their performance within the scope of the statutory warranty. The contractor will promptly inform the client of this.
7.2 The client’s claim expires six months after the respective service has been provided.
8. Liability / Compensation:-
8.1 The contractor is only liable to the client for damages – except for personal injury – in the case of gross negligence (intent or gross negligence). This also applies analogously to damages caused by third parties engaged by the contractor.
8.2 The client’s claims for damages can only be asserted in court within six months of becoming aware of the damage and the injuring party, but no later than three years after the event that gives rise to the claim.
8.3 The client is required to provide proof that the damage is attributable to the fault of the contractor.
8.4 If the contractor performs the work with the assistance of third parties and warranty and/or liability claims arise against these third parties, the contractor shall assign these claims to the client. In this case, the client will primarily pursue these claims with the third parties.
9. Confidentiality / Data Protection::-
9.1 The contractor agrees to maintain absolute confidentiality regarding all business matters they become aware of, particularly business and trade secrets, as well as any information they receive about the nature, scope of operations, and practical activities of the client.
9.2 Furthermore, the contractor agrees to maintain confidentiality about the entire content of the work, as well as all information and circumstances they have received in connection with the creation of the work, especially regarding the data of the client’s customers and third parties.
9.3 The contractor is relieved from the duty of confidentiality regarding any assistants and representatives they engage. However, they are required to fully impose the confidentiality obligation on these individuals and will be liable for any breach of confidentiality by them as if it were a breach by the contractor themselves.
9.4 The duty of confidentiality extends indefinitely, even beyond the termination of this contractual relationship. Exceptions apply in the case of legally required disclosure obligations.
9.5 The contractor is entitled to process personal data entrusted to them within the scope of the purpose of the contractual relationship. The client ensures that all necessary measures, particularly those in accordance with data protection laws, such as obtaining consent from the data subjects, have been taken.
10. Fees::-
10.1 Upon completion of the agreed work, the contractor will receive a fee in accordance with the agreement between the client and the contractor. The contractor is entitled to issue interim invoices based on the progress of the work and to request advance payments corresponding to the respective progress. The fee is due upon invoicing by the contractor.
10.2 The contractor will issue an invoice with all legally required details, which will be eligible for input tax deduction.
10.3 Any cash expenses, disbursements, travel costs, etc., incurred will be reimbursed by the client in addition to the fees, upon invoicing by the contractor.
10.4 If the execution of the agreed work is omitted due to reasons on the client’s side or due to a justified early termination of the contract by the contractor, the contractor retains the right to receive the full agreed fee, minus saved expenses. In the case of an hourly fee agreement, the fee for the number of hours expected to complete the entire agreed work must be paid, minus the saved expenses. The saved expenses are agreed to be a flat rate of 30 percent of the fee for those services that 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, the contractor is relieved from their obligation to provide further services. However, the assertion of additional claims resulting from non-payment is not affected by this.
11. Electronic Invoicing:-
11.1 The contractor is entitled to send invoices to the client in electronic form. The client explicitly agrees to receive invoices in electronic form from the contractor.
12. Duration of the Contract:-
12.1 This contract generally ends with the completion of the project and the corresponding invoicing.
12.2
The contract may, notwithstanding, be terminated by either party at any time for important reasons without observing a notice period. An important reason is considered to exist in particular if:
– If a party breaches essential contractual obligations, or
– If a party falls into payment arrears after the initiation of insolvency proceedings, or
– If there are justified concerns regarding the creditworthiness of a contracting party, for which no insolvency proceedings have been initiated, and that party, upon request by the contractor, neither makes advance payments nor provides adequate security before the contractor’s performance, and the poor financial condition of the other contracting party was not known at the time of contract conclusion.
13. Final Provisions:-
13.1 The contracting parties confirm that all information provided in the contract has been made diligently and truthfully and undertake to promptly notify each other of any changes.
13.2 Changes to the contract and these terms and conditions require written form; the same applies to any deviation from this form requirement. No oral side agreements exist.
13.3 Austrian substantive law applies to this contract, excluding the conflict-of-laws provisions of international private law and the UN Sales Convention. The place of performance is the location of the contractor’s professional establishment. For disputes, the court at the contractor’s place of business shall have jurisdiction.
The Professional Association of 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 that cannot be resolved amicably, 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 resolution of the conflict. If an agreement cannot be reached regarding the selection of business mediators or the content, legal action may be initiated no earlier than one month after the failure of negotiations.
(2) In the case of a failed or terminated mediation, Austrian law shall apply in any legal proceedings initiated. Any necessary expenses incurred due to a previous mediation, particularly those for legal advisors involved, may be claimed as “pre-litigation costs” in a court or arbitration proceeding, as agreed upon.