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). The version valid at the time of the conclusion of the contract shall be authoritative and considered in each case.

1.2 These General Terms and Conditions shall also apply to all future contractual relationships, even if no express reference is made to them in the case of supplementary agreements.

1.3 Any General Terms and Conditions of Business of the Principal to the contrary shall be invalid unless expressly acknowledged in writing by the Agent (Management Consultant).

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 Agent (Management Consultant) 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 Agent (Management Consultant) itself. No direct contractual relationship whatsoever shall arise between the third party and the Principal.

2.3 The Principal undertakes not to enter into any business relationship whatsoever with persons or companies used by the Agent (Management Consultant) for the performance of its contractual obligations, neither during nor for a period of three years after the termination of this contractual relationship. In particular, the Principal shall not commission these persons and companies with such or similar consulting services that are also offered by the Agent (Management Consultant).

Duty of the Principal to Provide Information or Declaration of Completeness

3.1 The Principal shall ensure that the organizational framework & conditions around it, for the performance 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.

3.2 The Principal shall also inform the Agent (Management Consultant) comprehensively about previously performed and/or ongoing consulting – also in other specialist areas.

3.3 The Principal shall ensure that the Agent (Management Consultant) is provided with all documents necessary for the performance and execution of the consulting assignment in a timely manner, even without the Agent’s specific 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 its employees and the employee representation (works council) provided for by law and established, if any, are informed by the Contractor (Management Consultant) prior to the commencement of its activities.

Safeguarding Autonomy

4.1 The contracting parties undertake to be loyal to each other.

4.2 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 shall apply in particular to offers made by the client for employment or the acceptance of orders on its own account.

Reporting / Duty to Report

5.1 The Agent (Management Consultant) undertakes to report to the Principal on his work, that of his 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 of consulting assignment, after completion of the assignment.

5.3 The Agent (Management Consultant) shall be free from instructions in the production of the agreed work, shall act at his own discretion and on his own responsibility. He shall not be bound to any particular place of work or to any particular working hours.

Protection of intellectual property

6.1 The copyrights to the works created by the Agent (Management Consultant) 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 Agent (Management Consultant). They may be used by the Principal during and after termination of the contractual relationship exclusively for purposes covered by the contract. In this respect, the Principal shall not be entitled to reproduce and/or distribute the work(s) without the express consent of the Agent (Management Consultant). Under no circumstances shall an unauthorized reproduction/dissemination of the Work give rise to any liability on the part of the Agent (Management Consultant) – in particular, for example, for the correctness of the Work – vis-à-vis third parties.
6.2 Any violation of these provisions by the Principal shall entitle the Agent (Management Consultant) to immediately terminate the contractual relationship prematurely and to assert other legal claims, in particular for injunctive relief and/or damages.

Warranty

7.1 The Agent (Management Consultant) shall be entitled and obligated, irrespective of fault, to correct any inaccuracies or defects in his services that become known to him. The Agent shall notify the Principal thereof without delay.
7.2 This claim on the part of the Principal shall expire six months after the respective service has been rendered.

Liability / Compensation

8.1 The Agent (Management Consultant) shall be liable to the Principal for damages – except for personal injury – only in the event of gross negligence (intent or gross negligence). This shall also apply ‘mutatis mutandis’ to damages attributable to third parties engaged by the Agent.
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 Principal shall in each case furnish proof that the damage is attributable to fault on the part of the Contractor.
8.4 If the Agent (Management Consultant) performs the work with the assistance of third parties and if warranty and/or liability claims arise against such third parties in this context, the Agent (Management Consultant) shall assign such claims to the Principal. In this case, the Principal shall have priority over these third parties.

Secrecy / Data Protection

9.1 The Agent (Management Consultant) shall be obligated to maintain absolute secrecy with regard to all business matters of which it becomes aware, in particular business and trade secrets, as well as any information that it receives about the type, scope of operation and practical activities of the Principal.
9.2 Furthermore, the Agent (Management Consultant) undertakes to maintain secrecy vis-à-vis third parties with regard to the entire content of the Work as well as all information and circumstances received in connection with the preparation of the Work, in particular also with regard to the data of the Principal’s clients.
9.3 The Agent (Management Consultant) shall be released from the duty of confidentiality with respect to any assistants and substitutes he may use. However, the Agent shall transfer the duty of confidentiality to them in full and shall be liable for their breach of the duty of confidentiality as for his own breach.
9.4 The duty of confidentiality shall extend indefinitely beyond the end of this contractual relationship. Exceptions exist in the case of legally stipulated obligations to testify.
9.5 The Agent (Management Consultant) shall be entitled to process personal data entrusted to it within the scope of the purpose of the contractual relationship. The Principal shall warrant to the Agent 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.

Fee Structure

10.1 Upon completion of the agreed work, the Agent (Management Consultant) shall receive a fee in accordance with the agreement between the Principal and the Agent (Management Consultant). The Agent (Management Consultant) 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 upon presentation of the invoice by the Agent.
10.2 The Agent (Management Consultant) shall issue an invoice with all legally required features entitling the Agent to deduct input tax.
10.3 Any cash expenses, out-of-pocket expenses, travel expenses, etc. shall be reimbursed by the Principal upon presentation of an invoice by the Agent (Management Consultant).
10.4 If the agreed work is not performed for reasons attributable to the Principal or due to justified premature termination of the contractual relationship by the Agent (Management Consultant), the Agent (Management Consultant) 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, the fee shall be paid for the number of hours that could have been expected for the entire agreed work, 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 day of termination of the contractual relationship.
10.5 In the event of non-payment of interim invoices, the Agent (Management Consultant) shall be released from its obligation to provide further services. However, this shall not affect the assertion of further claims resulting from non-payment.

Electronic Invoicing

11.1 The Agent (Management Consultant) shall be entitled to send invoices to the Principal also in electronic form. The Principal expressly agrees to the sending of invoices in electronic form by the Agent (Management Consultant).

Duration of the Contract

12.1 This contract shall generally end upon completion of the project.
12.2 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 in respect of 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 when the contract was concluded.

Final Provisions

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. There shall be no verbal collateral agreements.
13.3 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 (Management Consultant’s) professional establishment. The court at the Contractor’s (Management Consultant’s) place of business shall be responsible for disputes.

Mediation or arbitration clause:
(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. In the event that no agreement can be reached on the selection of the Wirtschaftsmediatoren 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 prior mediation, in particular also those for legal advisors consulted, may be claimed as “pre-litigation costs” in court or arbitration proceedings as agreed.

Status 2022