AGB
ALLGEMEINE GESCHÄFTSBEDINGUNGEN für Unternehmensberatung
1. General Principles / Scope of Application
1.1 These Terms and Conditions exclusively apply to all legal transactions between the client and the contractor (business consultant). The version valid at the time of contract conclusion is decisive.
1.2 These Terms and Conditions also apply to all future contractual relationships, even if no explicit reference is made in supplementary agreements.
1.3 Conflicting terms and conditions of the client are invalid unless expressly acknowledged in writing by the contractor (business consultant).
1.4 Should individual provisions of these Terms and Conditions become invalid, this does not affect the validity of the remaining provisions or the contracts concluded based on them. The invalid provision shall be replaced by a valid one that comes closest to the intent and economic purpose of the original provision.
2. Scope of the Consulting Assignment / Representation
2.1 The scope of a specific consulting assignment will be contractually agreed upon on a case-by-case basis.
2.2 The contractor (business consultant) is entitled to delegate tasks wholly or partially to third parties. The contractor (business consultant) will bear the costs of such third parties. No contractual relationship of any kind is formed between the third party and the client.
2.3 The client commits not to establish any business relationship with persons or companies used by the contractor (business consultant) to fulfill contractual duties during and for three years after the termination of this contractual relationship. The client, in particular, shall not engage these individuals or companies for services similar to those provided by the contractor (business consultant).
3. Client's Duty of Disclosure / Declaration of Completeness
3.1 The client must ensure that the organizational conditions at their business premises allow for undisturbed work conducive to the consulting process's progress.
3.2 The client will comprehensively inform the contractor (business consultant) about prior and ongoing consultations, including in other professional fields.
3.3 The client ensures that all documents necessary for fulfilling and executing the consulting assignment are presented to the contractor (business consultant) promptly without the need for a special request. This applies to all processes and circumstances relevant to executing the consulting assignment. This also applies to documents, processes, and circumstances that become known during the consultant's work.
3.4 The client ensures that their employees and any legally established and, if applicable, appointed employee representation (works council) are informed of the contractor's (business consultant's) activities before the start of the contractor's work.
4. Ensuring Independence
4.1 The contracting parties commit to mutual loyalty.
4.2 The contracting parties commit to taking all necessary precautions to prevent the independence of the third parties and employees engaged by the contractor (business consultant) from being jeopardized. This particularly applies to offers of employment or the assumption of tasks on the contractor's own account.
5. Reporting / Duty to Report
5.1 The contractor (business consultant) commits to reporting on their work, the work of their employees, and, if applicable, the work of third parties in accordance with the progress of the work.
5.2 The client will receive the final report within a reasonable time, generally two to four weeks, depending on the type of consulting assignment, after the assignment is completed.
5.3 The contractor (business consultant) is independent in producing the agreed work, acting at their discretion and under their 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 (business consultant), their employees, or third parties (in particular offers, reports, analyses, expert opinions, organizational plans, programs, service descriptions, drafts, calculations, drawings, data carriers, etc.) remains with the contractor (business consultant). They may only be used by the client for purposes covered by the contract during and after the contract's termination. The client is not authorized to reproduce or distribute the work(s) without the contractor's (business consultant's) explicit consent. Unauthorized reproduction/distribution of the work does not result in liability for the contractor (business consultant), particularly regarding the accuracy of the work, towards third parties.
6.2 A breach of these provisions by the client entitles the contractor (business consultant) to terminate the contractual relationship immediately and to assert other legal claims, particularly for injunctions and/or damages.
7. Warranty
7.1 The contractor (business consultant) is entitled and obliged to correct any inaccuracies and defects in their performance without regard to fault. The contractor will inform the client of this without delay.
7.2 This claim expires six months after the respective service is provided.
8. Liability / Damages
8.1 The contractor (business consultant) is liable to the client for damages – except for personal injury – only in cases of gross negligence (intent or gross negligence). This applies similarly to damages caused by third parties engaged by the contractor.
8.2 Claims for damages by the client can only be made within six months from the knowledge of the damage and the party responsible, but no later than three years after the event giving rise to the claim.
8.3 The client bears the burden of proof that the damage resulted from the contractor's fault.
8.4 If the contractor (business consultant) performs the work with the help of third parties and warranty and/or liability claims arise against these third parties, the contractor (business consultant) will assign these claims to the client. In such cases, the client will first seek recourse against these third parties.
9. Confidentiality / Data Protection
9.1 The contractor (business consultant) commits to absolute confidentiality concerning all business matters of which they become aware, particularly business and trade secrets, and any information received about the nature, scope, and practical activities of the client.
9.2 Furthermore, the contractor (business consultant) commits to maintaining confidentiality about the entire content of the work, as well as all information and circumstances received in connection with the creation of the work, particularly also regarding the data of the client's clients.
9.3 The contractor (business consultant) is released from the confidentiality obligation towards any assistants and representatives they may employ, but the contractor is obliged to fully transfer the confidentiality obligation to them and is liable for any breach of this confidentiality obligation as if it were their own breach.
9.4 The confidentiality obligation extends indefinitely beyond the end of this contractual relationship. Exceptions exist in the case of legally mandated disclosure obligations.
9.5 The contractor (business consultant) is entitled to process personal data entrusted to them within the framework of the purpose of the contractual relationship. The client guarantees that all necessary measures, particularly those in the sense of data protection law, such as consent declarations of the affected parties, have been taken.
10. Fees
10.1 Upon completion of the agreed work, the contractor (business consultant) receives a fee in accordance with the agreement between the client and the contractor (business consultant). The contractor (business consultant) is entitled to issue interim invoices based on the progress of the work and to request payments on account corresponding to the respective progress. The fee is due upon invoicing by the contractor.
10.2 The contractor (business consultant) will issue an invoice entitling the client to deduct VAT, containing all legally required features.
10.3 Any cash expenses, costs, travel expenses, etc., incurred shall be reimbursed by the client upon submission of invoices by the contractor (business consultant).
10.4 If the execution of the agreed work is not carried out for reasons attributable to the client or due to justified premature termination of the contractual relationship by the contractor (business consultant), the contractor (business consultant) retains the right to payment of the entire agreed fee, less any saved expenses. In the case of an hourly fee agreement, the fee is payable for the number of hours that would have been expected for the entire agreed work, less saved expenses. Saved expenses are agreed to be 30 percent of the fee for those services that the contractor has not yet provided by the date of termination.
10.5 In the event of non-payment of interim invoices, the contractor (business consultant) is released from the obligation to provide further services. This does not affect the assertion of further claims resulting from non-payment.
11. Electronic Invoicing
11.1 The contractor (business consultant) is entitled to send invoices to the client in electronic form. The client expressly agrees to the transmission of invoices in electronic form by the contractor (business consultant).
12. Duration of the Contract
12.1 This contract generally ends with the completion of the project.
12.2 Notwithstanding the foregoing, the contract may be terminated at any time by either party for good cause without observing a notice period. Good cause includes, in particular:
– a significant breach of contractual obligations by either party, or
– a delay in payment after the initiation of insolvency proceedings by either party, or
– justified concerns about the solvency of a party, if no insolvency proceedings have been initiated and the party does not make advance payments or provide appropriate security at the request of the contractor (business consultant), and the financial difficulties were not known to the other party at the time of contract conclusion.
13. Final Provisions
13.1 The contracting parties confirm that all information in the contract has been provided truthfully and they commit to notify each other immediately of any changes.
13.2 Amendments to the contract and these Terms and Conditions must be made in writing; this also applies to a waiver of this formal requirement. There are no oral side agreements.
13.3 This contract is subject to Austrian substantive law, excluding the conflict of laws rules of private international law. The place of fulfillment is the contractor's (business consultant's) business location. The court at the contractor's (business consultant's) business location has jurisdiction over any disputes.
Mediation Clause for Dispute Resolution:
(1) In the event of disputes arising from this contract that cannot be resolved amicably, the parties agree to jointly involve registered mediators (ZivMediatG) with a focus on commercial mediation from the list of the Ministry of Justice for the out-of-court settlement of the conflict. Should there be no agreement on the selection of commercial mediators or on the content, legal actions will be initiated no sooner than one month after the failure of the negotiations.
(2) In the case of a failed or aborted mediation, Austrian law shall apply in any court proceedings that may be initiated. All necessary expenses incurred due to a previous mediation, including those for legal advisors, may be claimed in a court or arbitration procedure as “pre-litigation costs” as agreed.
Cover Sheet to the “GENERAL TERMS AND CONDITIONS for Business Consulting”
ad 1. (General Principles / Scope)
Generally, contractual agreements take precedence over the provisions in the GTC. Furthermore, GTC become part of the contract only if this is (provably) agreed upon – preferably in writing. At the same time (before the conclusion of the contract), the GTC must be provided to the client. Providing the GTC after the conclusion of the contract on invoices, delivery notes, or similar documents is generally ineffective. Unfavorable, unusual, and surprising clauses in GTC, that is, clauses that the client would not expect based on the circumstances of the contract and the appearance of the document, will not become part of the contract unless the client has been expressly (provably) informed about them. Businesses that regularly use GTC must display the GTC in areas serving customer interactions.
If both the client and the contractor refer to their respective GTC, there is a disagreement if the GTC contradict each other; this is generally regardless of the clause contained in point 1.3. The contract will usually still be concluded as the parties agree on the essential points of the contract (usually: service and price); only the contradicting clauses will not apply (partial invalidity). Points not regulated by the contract are then to be determined by statutory provisions or supplementary interpretation. To ensure the applicability of the GTC as much as possible in case of a dispute, the GTC nevertheless contain the “defense clause” according to point 1.3.
ad 2. (Scope of the Consulting Contract / Representation)
According to the nature of the work contract, the contractor is entitled to be represented by other independent third parties in the performance of the work. This is to be distinguished from the involvement of – attributable to the contractor – own assistants (e.g., employees of the contractor).
From a data protection perspective, if you wish to pass data to a sub-processor in the course of the contract, you must have agreed to this transfer with the client. This will be regulated either in the data processing agreement or in a separate agreement.
ad 6. (Protection of Intellectual Property)
The work contract contains a detailed regulation of copyright (rights of use). According to this, the copyrights remain with the contractor.
ad 7. (Warranty)
The warranty period is limited to six months. The contractor is primarily obligated to remedy the defective performance; only after that does the client have a claim for a reduction of the price and/or rescission (“termination of the contract”). The statutory warranty period is two years; however, it is possible to shorten this period – except for transactions with consumers.
ad 8. (Liability / Damages)
The contractor is liable to the client only for gross negligence, except for personal injury.
ad 9. (Confidentiality / Data Protection)
The responsible party, the data processor, and their employees must keep personal data from data processing, which has been entrusted to them exclusively due to their professional occupation or has become accessible to them, confidential, regardless of other statutory confidentiality obligations, as long as there is no legally permissible reason for transmitting the entrusted or accessible personal data (data confidentiality). Employees must be informed about this and the possible consequences of a violation.
Due to the upcoming changes under the EU General Data Protection Regulation and the Austrian Data Protection Adjustment Act 2018 (hereinafter: DSG), it is recommended to not include additional data protection clauses directly in the GTC but to provide a separate document. It must be ensured that any data protection consents are properly obtained and that information obligations are fulfilled timely and completely. Additionally, a data processing agreement must be concluded if data is processed for the client within the scope of the contract (which is to be assumed in this industry). Templates and further details can be found at: www.wko.at/datenschutz.
ad 10. (Fee)
The fee agreed with the contractor must be included in the contract. The fee is due upon invoicing by the contractor. Any cash expenses and disbursements must be reimbursed by the client in addition to the invoicing.
ad 11. (Electronic Invoicing)
One of the legal prerequisites for the admissibility of electronic invoicing by the contractor (business consultant) is the consent of the invoice recipient (client).
Miscellaneous
The place of jurisdiction must be explicitly agreed upon in the contractual agreement with the client.
