GENERAL TERMS AND CONDITIONS newcom.advisory GmbH
GENERAL TERMS AND CONDITIONS newcom.advisory. GmbH
General Principles / Scope of Application
1.1 These General Terms and Conditions shall apply exclusively to all legal transactions between the Principal and the Agent (Management Consultant) – hereinafter only the term Agent shall be used. The version valid at the time of the conclusion of the contract shall be authoritative in each case.
1.2 These General Terms and Conditions shall also apply to all future contractual relationships, thus even if not expressly referred to in supplementary agreements.
1.3 Conflicting General Terms and Conditions of the Client shall be invalid unless they are expressly accepted by the Contractor in writing.
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 thereof. The invalid provision shall be replaced by a valid provision which comes as close as possible to its meaning and economic purpose.
Scope of the Consulting Order / Substitution
2.1 The scope of a specific consulting assignment shall be contractually agreed in each individual case.
2.2 The Contractor shall be entitled to have the tasks incumbent upon it performed in whole or in part by third parties. The payment of the third party shall be made exclusively by the Agent him/herself. No direct contractual relationship whatsoever shall arise between the third party and the Principal.
2.3 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 or up to three years after the termination of this contractual relationship. The Customer shall in particular not commission such persons and companies with such or similar consulting services which the Contractor also offers.
Duty of the Principal:in to provide information / Declaration of Completeness
3.1 The Principal shall ensure that the organizational framework conditions for the fulfillment of the consulting assignment at his/her place of business allow for undisturbed work conducive to the rapid progress of the consulting process.
3.2 The Principal shall also inform the Agent comprehensively about previously performed and/or ongoing consultations – also in other areas of expertise.
3.3 The Principal shall ensure that all documents necessary for the performance and execution of the consulting assignment are submitted to the Agent 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.
3.4 The Principal shall ensure that his/her employees and the employee representation (works council) provided for by law and established, if applicable, are informed of the activities of the Consultant prior to commencement thereof.
Safeguarding of Independence
4.1 The contracting parties undertake to be loyal to each other.
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 shall apply in particular to offers made by the Principal:in for employment or the acceptance of orders on its own account.
Reporting / Duty to Report
5.1 The Contractor undertakes to report to the Principal on his/her work, that of his/her employees and, if applicable, that of commissioned third parties in accordance with the progress of the work.
5.2 The Principal shall 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 shall not be bound by any instructions in the production of the agreed work and shall act at his/her own discretion and under his/her own responsibility. He/she shall not be bound to any specific place of work or working hours.
Protection of intellectual property
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, organizational plans, programs, performance descriptions, drafts, calculations, drawings, data carriers, etc.) shall remain with the Contractor.
Protection of Intellectual Property
6.1 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 specifications, 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. The Client shall not be entitled to reproduce and/or distribute the work(s) without the express consent of the Contractor. Under no circumstances shall an unauthorized reproduction/dissemination of the Work give rise to any liability on the part of Contractor:in – in particular, for example, for the correctness of the Work – vis-à-vis third parties.
6.2 Any violation of these provisions by the Client shall entitle the Contractor to terminate the contractual relationship immediately and prematurely and to assert other legal claims, in particular for injunctive relief and/or damages.
7.1 The Contractor shall be entitled and obligated, regardless of fault, to remedy any inaccuracies and defects in his/her performance that become known within the scope of the statutory warranty. He/she shall inform the Customer thereof without delay.
7.2 This claim of the Principal shall expire six months after the performance of the respective service.
Liability / Compensation
8.1 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 caused by third parties engaged by the Contractor.
8.2 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.
8.3 The Customer shall in each case furnish 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 in this context, the Contractor shall assign these claims to the Customer. In this case, the Principal shall have priority over these third parties.
Secrecy / Data Protection
9.1 The Contractor is obligated to maintain absolute secrecy regarding all business matters of which he/she becomes aware, in particular business and trade secrets as well as any information that he/she receives regarding the type, scope of operation and practical activities of the Principal.
9.2 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 that he/she has received in connection with the creation of the Work, in particular also about the data of the Client’s clients.
9.3 The Contractor shall be released from the duty of confidentiality with respect to any assistants and substitutes he/she uses. However, he/she shall fully transfer the duty of confidentiality to them and shall be liable for their violation of the duty of confidentiality as for his/her own violation.
9.4 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.
9.5 The Contractor shall be entitled to process personal data entrusted to him/her within the scope of the purpose of the contractual relationship. The Client 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.
10.1 Upon 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 submit 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 upon presentation of the invoice by the Contractor.
10.2 The Contractor shall issue an invoice with all legally required features entitling the Contractor to deduct input tax.
10.3 Any cash expenses, out-of-pocket expenses, travel expenses, etc. shall be invoiced to the Contractor.
10.4 If the agreed work is not performed due to reasons on the part of the Client or due to a justified premature termination of the contractual relationship by the Contractor, the Contractor shall be entitled 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 the 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.
10.5 In the event of non-payment of interim invoices, the Contractor shall be released from his/her obligation to provide further services. However, this shall not affect the assertion of further claims resulting from non-payment.
11.1 The Contractor shall be entitled to send invoices to the Customer in electronic form. The Customer expressly agrees to the sending of invoices in electronic form by the Contractor.
Duration of the contract
12.1 This Agreement shall generally end upon completion of the Project and the corresponding invoicing.
12.2 Notwithstanding the above, the contract may be terminated at any time for good cause by either party without notice. In particular, good cause shall be deemed to be,
if one of the contracting parties breaches essential contractual obligations, or
if a contracting party defaults on payment after insolvency proceedings have been initiated, or
if there are justified doubts regarding the creditworthiness of a contracting party in respect of which no insolvency proceedings have been opened and the latter, at the request of the Contractor:in, neither makes advance payments nor provides suitable security prior to performance by the Contractor:in and the poor financial circumstances of the other contracting party were not known at the time of conclusion of the contract.
13.1 The contracting parties confirm that they have made all statements in the contract conscientiously and truthfully and undertake to notify each other immediately of any changes.
13.2 Amendments to the contract and these GTC must be made in writing, as must any waiver of this formal requirement. Verbal collateral agreements do not exist.
13.3 This contract shall be governed by Austrian substantive law, excluding the conflict of laws rules of private international law and the UN Convention on Contracts for the International Sale of Goods. 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.
The Professional Association of Management Consultancy, 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 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 mediator(s) or on the content, legal action shall be taken at the earliest one month after the failure of the negotiations.
(2) In the event of a mediation which has not been concluded or which has been terminated, Austrian law shall apply in any legal proceedings which may be instituted.
All necessary expenses incurred as a result of a previous mediation, in particular also those for legal advisors consulted, may be claimed as “pre-litigation costs” in court or arbitration proceedings as agreed.