General Terms and Conditions
Publication 03 May 2016
Konsultori BD GmbH
Mag. Petra Wolkenstein
(hereinafter referred to as “Consultancy Konsultori”)
1. General principles / scope of application
1.1 These General Terms and Conditions apply exclusively to all legal transactions between the client and Konsultori Consulting. The version valid at the time of the conclusion of the contract is decisive in each case.
1.2 These General Terms and Conditions shall also apply to all future legal transactions even if not expressly referred to.
1.3 Conflicting and supplementary regulations – especially general terms and conditions of the client – are invalid, unless they are explicitly confirmed in writing by Konsultori Consulting.
1.4 Should individual provisions of these General Terms and Conditions be and/or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions and the contracts concluded on the basis thereof. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision that comes closest to its meaning and economic purpose.
1.5 For consulting orders that are subject to separate funding conditions, the Terms and Conditions of the Konsultori Management Consultancy always apply in addition. If the number of funded consulting hours has already been exhausted for a consulting order, the General Terms and Conditions of Konsultori Management Consultancy shall apply exclusively.
2. Scope of the consulting assignment / deputization
2.1 The scope of a specific consulting assignment is contractually agreed in each individual case.
2.2. Offers are subject to change, unless they are expressly designated as binding. The order of the client is only considered accepted with the order confirmation of Konsultori Consulting, which concludes a contract.
2.3. Unternehmensberatung Konsultori is entitled to have the tasks incumbent upon it performed in whole or in part by third parties. The payment of the commissioned third parties shall be made exclusively by Unternehmensberatung Konsultori itself. There is no direct contractual relationship between the third party and the client.
2.4. The client undertakes not to enter into any business relationship whatsoever with third parties used by Konsultori Management Consultancy for the fulfillment of its contractual obligations towards the client during and until the expiration of three years after the termination of this contractual relationship. In particular, the client shall not commission such persons and companies with such or similar consulting services that are also offered by Consultancy Konsultori.
The consulting service can be provided at the registered office or in the office premises of the client or of the consulting company Konsultori or
at any other place agreed upon or resulting from the consulting assignment, e.g. when accompanying the client to meetings with third parties, or when
third parties, or the holding of meetings at other locations on behalf of the client. Typical consulting services also include telephone calls and email correspondence that go beyond the mere scheduling of appointments, as well as moderations, workshops, training sessions and seminars. Service times without contact with the client, such as preparatory and follow-up work, research activities and the preparation of expert opinions, also count as times when consulting services are provided.
3. Client’s duty to clarify and cooperate / declaration of completeness
3.1 The Client shall ensure that the organizational framework conditions for the fulfillment of the consulting assignment at its registered office or its office premises allow the work to proceed as undisturbed as possible and in a manner conducive to the rapid progress of the consulting process.
3.2 The client will inform Konsultori in detail about previously performed and/or ongoing consulting services – also in other fields of expertise.
3.3 The client shall ensure that all documents necessary for the fulfillment and execution of the consulting order are submitted to Unternehmensberatung Konsultori in a timely manner, even without a special request by Unternehmensberatung Konsultori, and that Unternehmensberatung Konsultori is informed about all processes and circumstances that may be of importance for the execution of the consulting order. This also applies to all documents, processes and circumstances which only become known during the activity of the consultancy Konsultori.
3.4 The client indemnifies and holds harmless Konsultori for any and all damages resulting from the violation of the duty to inform and cooperate according to this point 3.
4. Ensuring independence
4.1 The contracting parties undertake to be loyal to each other.
4.2 The client is obliged to take all precautions to prevent that the independence of the assigned third parties and employees of Konsultori is endangered and has to refrain from any endangerment of this independence himself. This applies in particular to offers made by the client for employment or the acceptance of orders on his own account.
5. Reporting / reporting obligation
5.1 In the absence of a contractual agreement to the contrary, the consultancy Konsultori is not obliged to report.
5.2 In case of contractual agreement on reporting, the client receives the final report within four weeks after completion of the assignment.
5.3 Konsultori Management Consultancy is free from instructions in the production of the agreed work, acts at its own discretion and under its own responsibility. It is not bound to any particular place of work and working hours.
6. Protection of intellectual property
6.1 The copyrights to the works created by Unternehmensberatung Konsultori and its employees and commissioned third parties (in particular offers, reports, analyses, expert opinions, organizational plans, programs, business plans and business valuations, performance specifications, drafts, calculations, drawings, data carriers, etc.) shall remain with Unternehmensberatung Konsultori. They may be used by the client during and after termination of the contractual relationship exclusively for purposes covered by the contract. The client is not entitled to disclose the work(s) to third parties or to reproduce or distribute them without the express consent of Unternehmensberatung Konsultori. The granting of permission to use the work(s) is subject to the written consent of Unternehmensberatung Konsultori. Under no circumstances shall an unauthorized reproduction/dissemination of the work result in liability of Unternehmensberatung Konsultori – in particular for the correctness of the work – towards third parties.
6.2 The client’s violation of these provisions entitles Konsultori Consulting to immediately terminate the contractual relationship prematurely and to assert other legal or contractual claims, in particular for injunctive relief, damages or fees.
7.1 The warranty period is six months from the date of performance of the respective service.
7.2 The existence of defects shall be proven by the customer. § 924 ABGB shall not apply. Defects that occur are to be notified by the client immediately, in detail and in writing.
7.3 In case of warranty, Konsultori is entitled to choose the type of warranty (improvement, exchange, price reduction or cancellation).
8. Liability / Compensation
8.1 Unternehmensberatung Konsultori is liable to the client only in case of intent or gross negligence. In case of slight negligence Unternehmensberatung Konsultori is only liable for personal injuries. This applies accordingly to damages caused by third parties engaged by Unternehmensberatung Konsultori. The liability of Unternehmensberatung Konsultori is limited to the respective contract sum per case of damage. Unternehmensberatung Konsultori is not liable for indirect damages, loss of profit, loss of interest, missed savings, consequential and financial damages, damages resulting from claims of third parties as well as for the loss of data and programs and their recovery.
8.2 Claims for damages by the client can only be asserted in court within six months of knowledge of the damage and the damaging party.
8.3 If Unternehmensberatung Konsultori performs the work with the help of third parties and notifies the client of this and in this context warranty and/or liability claims arise against these third parties, Unternehmensberatung Konsultori assigns these claims to the client. Unternehmensberatung Konsultori is only liable for negligence in the selection of the third party.
8.4 If, in whatever case, a penalty has been agreed upon, it shall be subject to the right of judicial moderation. The assertion of claims for damages in excess of the penalty shall be excluded.
9. Secrecy / Data protection
9.1 In the absence of any contractual agreement to the contrary, the contracting parties undertake to maintain secrecy about all confidential business matters of which they become aware, in particular business and trade secrets of the other contracting party.
9.2 Furthermore, Konsultori undertakes to maintain secrecy towards third parties regarding the entire content of the work as well as all information and circumstances which it has received in connection with the creation of the work, in particular also regard
9.3 Konsultori is released from the duty of confidentiality towards any assistants and substitutes it uses. However, it shall fully transfer the duty of confidentiality to them and shall be liable for their breach of the duty of confidentiality as for its own breach.
9.4 The obligation to maintain confidentiality shall remain in force during and for a period of three years after termination of the contractual relationship. Exceptions exist in the case of legally stipulated obligations to testify or obligations to disclose to courts and authorities.
9.5 Consultancy Konsultori is entitled to process personal data entrusted to it within the scope of the purpose of the contractual relationship. The client warrants to Consultancy Konsultori that all necessary measures have been taken for this purpose, in particular those in the sense of the Data Protection Act, such as declarations of consent of the persons concerned.
10.1 Consulting services shall be invoiced on the basis of hourly records, whereby 15 minutes shall be invoiced as the smallest unit. In case of doubt, the hourly records of Unternehmensberatung Konsultori shall be the basis for the charging of consulting services.
If the charging of services is agreed upon via a lump sum, Unternehmensberatung Konsultori is not obliged to submit hourly records when invoicing.
10.2 After completion of the agreed work, Unternehmensberatung Konsultori receives a fee according to the agreement between the client and Unternehmensberatung Konsultori. In the absence of an explicit agreement on the amount of the fee, a reasonable fee shall be deemed to be owed. Unternehmensberatung Konsultori is entitled to issue interim invoices according to the progress of the work and to demand payment on account according to the progress of the work. The fee is due when the invoice is issued by Unternehmensberatung Konsultori.
10.3 Konsultori Consulting will issue an invoice with all legally required features, which entitles the client to deduct input tax.
10.4 Any cash expenses, out-of-pocket expenses, travel expenses and the like are to be reimbursed by the client in addition to the fee against invoicing of the consultancy Konsultori.
10.5 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 Unternehmensberatung Konsultori, then Unternehmensberatung Konsultori retains the right to payment of the entire agreed fee less saved expenses. If 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 have not yet been rendered by Konsultori up to the day of termination of the contractual relationship.
10.6 Agreed appointments will be charged in any case, unless the written cancellation (including by email) is received by Konsultori Consulting at least 48 hours before their start.
10.7 In the event of non-payment of interim invoices, Konsultori Consulting shall be released from its obligation to continue providing services. This does not affect the assertion of further claims resulting from the non-payment and point 10.5 applies.
10.8 For reminders in case of default of payment on the part of the client €10.00 per reminder will be charged. The consultancy Konsultori is entitled to take legal action without prior reminder. In any case legal interest on arrears will be charged.
11. Electronic invoicing
11.1 Unternehmensberatung Konsultori is entitled to send invoices to the client also in electronic form. The client expressly agrees to the sending of invoices in electronic form by Unternehmensberatung Konsultori.
12. Contract duration
12.1 The consulting agreement shall generally end upon completion of the project.
12.2 Notwithstanding the foregoing, the consulting agreement may be terminated at any time for good cause by either party without notice. Good cause shall be deemed to exist in particular
- if one of the contracting parties breaches essential contractual obligations or
- if a contracting party is in default of payment or
- if there are justified doubts regarding the creditworthiness of a contracting party, for which no insolvency proceedings have been opened, and if this contracting party, upon request of Unternehmensberatung Konsultori, neither makes advance payments nor provides suitable security prior to the performance of Unternehmensberatung Konsultori and if the bad financial situation was not known to the other contracting party at the time of conclusion of the contract.
13. Final provisions
13.1 The contracting parties confirm that they have provided all information in the consulting agreement conscientiously and truthfully and undertake to notify each other immediately of any changes.
A set-off against claims of Unternehmensberatung Konsultori with counterclaims of any kind is excluded.
13.2 Amendments to the contract and these GTC must be made in writing; likewise, any waiver of this formal requirement. Verbal collateral agreements do not exist.
13.3 This contract, its performance and the claims arising therefrom shall be governed by Austrian law, excluding the conflict of law rules of private international law. The place of performance shall be Vienna. The court in Vienna shall be responsible for disputes.