General Terms &  Conditions

General Terms and Conditions for Management Consultants

 

1. General Terms and Conditions / Scope

1.1 All legal transactions between the Principal and the Agent (Management Consultant) shall be subject to these General Terms and Conditions exclusively. The version valid at the time the Contract is concluded shall be applicable.

1.2 These General Terms and Conditions shall also apply to any future contractual relationships even if these General Terms and Conditions are not expressly referred to in collateral contracts.

1.3 Any conflicting General Terms and Conditions on the part of the Principal shall be invalid unless they have been explicitly accepted in writing by the Agent (Management Consultant).

1.4 If any provision of these General Terms and Conditions is or becomes invalid, the other provisions and any contracts concluded pursuant to these provisions shall not be affected thereby. The invalid provision shall be replaced by a provision which best corresponds to the intention and economic purpose of the invalid provision.

 

2. Scope of Consulting Assignments / Representation

2.1 The scope of each particular consulting assignment shall be individually agreed by contract.

2.2 The Agent (Management Consultant) shall be entitled to subcontract, in whole or in part, the services for which the Agent is responsible to third parties. Payment of said third parties shall be effected exclusively by the Agent (Management Consultant). No contractual relationship of any kind shall exist between the Principal and said third party.

2.3 During the validity of this Contract and for a period of three years after termination thereof, the Principal shall agree not to enter into any kind of business transactions with persons or organisations the Agent (Management Consultant) employs to perform the Agent’s contractual duties. In particular, the Principal shall not employ said persons or organisations to render consulting services the same or similar to those offered by the Agent (Management Consultant).

 

3. Principal’s Obligation to Provide Information / Declaration of Completeness

3.1 The Principal shall ensure that during the performance of the consulting assignment, organisational conditions in the Principal’s place of business allow the consulting process to proceed in a timely and undisturbed manner.

3.2 The Principal shall also inform the Agent (Management Consultant) in detail about previously conducted and/or currently active consulting projects, including those in other areas of competency.

3.3 The Principal shall, in a timely manner and without special request on the part of the Agent, provide the Agent (Management Consultant) with all documents necessary to fulfil and perform the consulting assignment and shall inform the Agent of all activities and conditions pertinent to the performance of the consulting assignment. This includes all documents, activities and conditions that become known or available during the performance of the consulting assignment.

3.4 The Principal shall ensure that all employees as well as any employee representation (works council) provided by law, if established, are informed of the Agent’s consulting activities prior to the commencement of the assignment.

 

4. Maintenance of Independence

4.1 The contracting parties shall be committed to mutual loyalty.

4.2 The contracting parties shall be obligated to take all necessary measures to ensure that the independence of all persons working for the Agent (Management Consultant) and/or of any third parties employed by the Agent is not jeopardized. This applies particularly to any employment offers made by the Principal or the acceptance of assignments on their own account.

 

5. Reporting / Obligation to Report

5.1 The Agent (Management Consultant) shall be obligated to report to the Principal on the progress of services performed by persons working for the Agent and/or any third parties employed by the Agent.

5.2 The Agent (Management Consultant) shall deliver the final report in a timely manner, i.e. depending on the type of assignment, two to four weeks after completion of the assignment.

5.3 The Agent (Management Consultant) shall not be bound by directives while performing the agreed service and shall be free to act at the Agent’s discretion and under the Agent’s own responsibility. The Agent shall not be required to work in a particular place or to keep particular working hours.

 

6. Protection of Intellectual Property

6.1 The Agent (Management Consultant) shall retain all copyrights to any work done by the Agent and/or by persons working for the Agent and/or by third parties employed by the Agent (including but not limited to tenders, reports, analyses, expert opinions, organization charts, programmes, performance descriptions, drafts, calculations, drawings, data media, etc.). During the contract period and after termination thereof, the Principal may use these materials exclusively for the purposes described under the Contract. Therefore, the Principal shall not be entitled to copy or distribute these materials without the explicit consent of the Agent (Management Consultant).

6.2 Any violation of this provision by the Principal shall entitle the Agent (Management Consultant) to prematurely terminate the Contract and to enforce other legal claims, in particular for restraint and/or damages.


7. Warranties

7.1 The Agent (Management Consultant) shall be entitled and obligated, regardless of fault, to correct any errors and/or inaccuracies in the Agent’s work which have become known subsequently. The Agent shall immediately inform the Principal thereof.

7.2 This right of the Principal expires six months after completion of the respective service.

 

8. Liability / Damages

8.1 The Agent (Management Consultant) shall be liable to the Principal for damages - with the exception of personal injury – only to the extent that these are the result of serious fault (intention or gross negligence). Correspondingly, this also applies to damages resulting from third parties employed by the Agent.

8.2 Any claim for damages on the part of the Principal may only be enforced by law within six months after those entitled to assert a claim have gained knowledge of the damage and the liable party, but not later than three years after the incident upon which the claim is based.

 

8.3 The Principal shall furnish evidence of the Agent’s fault.

8.4 If the Agent (Management Consultant) performs the required services with the help of third parties, any warranty claims and claims for damages which arise against the third party shall be passed on to the Principal. In this case, the Principal shall primarily refer to the third party.

 

9. Confidentiality / Data Protection

9.1 The Agent (Management Consultant) shall be obligated to maintain complete confidentiality concerning all business matters made known to the Agent in the course of services performed, especially trade and company secrets and any other information concerning type and/or scope of business and/or practical activities of the Principal.

9.2 Furthermore, the Agent (Management Consultant) shall be obligated to maintain complete confidentiality towards third parties concerning the content of the work completed, as well as any information and conditions that contributed to the completion of the work, particularly concerning data on the Principal’s clients.

9.3 The Agent (Management Consultant) shall not be obligated to maintain confidentiality towards any person working for the Agent or representatives of the Agent. The Agent is required to obligate such persons to maintain complete confidentiality and shall be liable for any violation of confidentiality on their part in the same way as if the Agent had breached confidentiality.

9.4 The obligation to maintain confidentiality shall persist indefinitely even after termination of this Contract.

9.5 The Agent (Management Consultant) shall be entitled to use any personal data entrusted to the Agent for the purposes of the services performed. The Agent (Management Consultant) shall guarantee the Principal that all necessary measures will be taken, especially those regarding data protection laws, e.g. that declarations of consent are obtained from the persons involved.

 

10. Remuneration

10.1 After completion of the services agreed upon, the Agent (Management Consultant) shall receive remuneration agreed upon in advance between the Agent (Management Consultant) and the Principal. The Agent (Management Consultant) shall be entitled to render intermediate accounts and to demand payment on account as required by the 5 progress of the work. Remuneration shall be due and payable immediately after rendering accounts by the Agent.

10.2 The Agent (Management Consultant) shall render accounts which entitle to deduct input tax and contain all elements required by law.

10.3 Any cash expenditures, expenses, travel expenses, etc. shall be reimbursed to the Agent (Management Consultant) by the Principal separately, upon submission of the appropriate receipts.

10.4 In the event that the work agreed upon is not completed due to reasons on the part of the Principal, or due to a premature termination of contract by the Agent (Management Consultant) for cause, the Agent (Management Consultant) shall be entitled to claim payment in full of the remuneration agreed upon in advance, less expenses not incurred. In the event that an hourly fee had been agreed upon, the Principal shall pay for the number of hours expected to be required for the entire contracted assignment, less expenses not incurred. Expenses not incurred shall be calculated as a lump sum consisting of 30% of the fee required for those services that the Agent did not perform by the date of termination of the agreement.

10.5 In the event that intermediate invoices are not paid, the Agent (Management Consultant) shall be released from the Agent’s commitment to provide further services. This shall not apply to any further claims resulting from default of payment.

 

11. Electronic Invoicing

11.1 The Agent (Management Consultant) shall be entitled to transmit invoices electronically. The Principal agrees explicitly to accept invoices transmitted electronically by the Agent (Management Consultant).

 

12. Duration of the Agreement

12.1 This Contract terminates with the completion of the project.

12.2 Apart from this, this Contract may be terminated for good cause by either party at any time without notice. Grounds for premature termination include the following: - one party breaches major provisions of the Contract - one party opens insolvency proceedings or the petition for bankruptcy is denied because of insufficient assets to cover expenses.

 

13. Final Provisions

13.1 The contracting parties declare that all information contained herein is accurate and made in good conscience. They shall be mutually obligated to immediately inform the other party of any changes.

13.2 Modifications of and amendments to this Contract or these General Terms and Conditions shall be made in writing. This shall also apply to a waiver of this requirement in written form.

13.3 This Contract is governed by the substantive law of the Republic of Austria excluding the conflict-of-law rules of international private law. Place of fulfilment is the registered business establishment of the Agent (Management Consultant). Jurisdiction in all disputes is the court in the place where the Agent (Management Consultant) is based.

 

Dispute Settlement

  1. In case of a dispute arising from this contract that cannot be settled by mutual agreement, the contracting parties mutually agree tomediators registered in the EU for the out-of-court settlement of the conflict.

There is also the possibility to call in mediators with a focus on business mediation (ZivMediatG) from the list of the Ministry of Justice. If no agreement can be reached on the selection of the business mediators or on the content, legal steps will be initiated at the earliest one month after the failure of the negotiations.

  1. In the event that mediation does not také place or is canceled, Austrian law applies to any legal proceedings that may by initiated.
  2. All necessary expenses incurred as a result of previous mediation, in particular those for legal advisors, can be claimed as „pre-litigation costs“ in court or arbitration proceedings.

 

Sheet to the

„General Terms and Conditions

 

 

ad §1. General principles/ scope

In principle, contractual agreements take precendence over the provisions contained in the GTC. In addition, terms and conditions only become part of the contract if this is (demonstrably) agreed – preferably in writing. At the same time (before the contract is concluded), the terms and conditions must be sent to the customer. The transmission of the terms and conditions after the conclusion of the contract on invoices, delivery notes or the like is fundamentally ineffective. Disadvantageous, unusual and surprising clauses in terms and conditions, i.e. clauses with which the client does not have to reckon with the circumstances surrounding the contract and the appearance of the document, are not part of the contract unless the client has been expressly (verifiably) informed.

 

In the customer and the contractor (management consultant) each refer to the validity of their terms and conditions, there is dissent if the terms and conditions contradict one another; this in principle regardless of the clause contained in point 1.3. Most of the time, the contract will come into being because the contracting parties are/ were in agreement on the main points of the contract (usually: performance and price); only the contradicting clause do not apply (partial invalidity). The points not regulated by the contract are then to be determined by statutory provisions or additional interpretation. In order to ensure the validity of the General Terms and Conditions as far as possible in the event of a dispute, the General Terms and Conditions nevertheless contain the “defense clause” in accordance with point 1.3.

 

ad § 2. Scope oft he consulting assignment/ representation

In accordance with the nature of the work contract, the contractor (management consultant) is entitled to be represented by other independent third parties in the production of the work. This is to be distinguished from the use of – the contractor (management consultant) anyway – own auxiliary persons (e.g. employees of the contractor). Sub-processors within the scope of the order are agreed and included with the consent of the contractor.

 

ad § 6. Protection of intellectual property

The contract for work contains a detailed regulation of copyrights (rights of use). Accordingly, the copyrights remain with the contractor (management consultant).

 

ad § 7. Warranty

The warranty period is limited to six months. The contractor (business consultant) primarily has to improve poor performance; only then does the customer have a right to a reduction in the price and/ or conversion (“reversal of the contract”).


ad § 8. Liability/ compensation

The contractor (management consultant) is liable to the customer, apart from personal injury, only for gross negligence (§879 BIIcABGB §1300 D).

 

ad § 9. Confidentiality / data protection

The person responsible, the processor and their employees have to keep personal data form data processing that have been entrusted to them or have become accessible exclusively due to their professional activity, without prejudice to other statutory confidentiality obligations, unless there is a legally permissible reason for the transfer of the entrusted or accessible personal data has become available (data secrecy). Employees have to be instructed about this and about any consequences of a violation. 

Due to the changes brought about by the EU General Data Protection Regulation and the Austrian Data Protection Adjustment Act 2018 (GDPR), an extra data protection sheet was generated, which was explained to the employee and handed over (also valid in electronic form).

 

ad § 10. Fee

The fee agreed with the contractor (management consultant) must be included in the contract. The fee is due upon invoicing by the contract. Any cash outlays and expenses incurred have to be reimbursed by the customer against an invoice. 

 

Definitions

Terms fee according to the professional association for management consulting and information technology of the Austrian Chamber of Commerce as of September 13, 2020.

Fee within the meaning of these guidelines is the remuneration for services and expenses of the management consultant and his vicarious agents. The base fee per man-day (also called daily work) is the rate that is applied for a consultation of 8 consecutive hours in the local community of the management consultant. For the sake of simplicity, a corresponding hourly rate can also be used. 

Additional and special costs are not included in this basic fee; these are to be charged separately.

 

Calculation

If the fee is calculated on the basis of the time required, it must be taken into account whether the services are provided in the management consultant’s office, at the client’s or at a third location. Fees that relate to clearly quantifiable tasks should be in reasonable relation to the value in dispute of the subject of the consultation (value adjustment). Flat-rate fees can also be agreed. 

The management consultant undertakes not to accept any commissions or other services from third parties that are likely to influence this objectivity. 

If an order placed is revoked or restricted, the statutory provisions on the work contract apply.

 

Surcharges

Service outside of normal working hours/ service outside of Austria 

Elaboration of analyzes and concepts 50%

Preparation of studies 60%

Research assignments 70%

Preparation of expert reports including findings for submission of authorities, courts, banks, funding institutions, etc. 100%

 

Research and development programs in cooperation with universities and other scientific institutions 100%

 

Involvement of members of other chambers (lawyers, doctors, civil engineers, etc.) as part of a consulting contract for the duration of the involvement 100%

 

Value adjustment

Der Unternehmensberater ist berechtigt, gegebenenfalls folgende Zuschläge zu seinem Honorar zu berechnen.

The management consultant is entitled to add the following surcharges to hies fee if necessary.

 

  • Between 10 p.m. and 6 a.m.      60%
  • Between 6 a.m and 9 p.m           30%
  • On Sundays and public holidays 60%

 

Services outside of Austria:

  • Outside Europe 120%

 

  • Advice on investments (excluding real property) 3%

 

  • Real property 1%

 

  • Fundraising 1%

 

  • Recruiting 2 monthly salaries 


Fee based on time spent

 

The recommended hourly rate refers to services in the so-called normal working hours between 8 a.m. and 6 p.m.

 

The minimum fee for an out-of-home intervention is double the hourly rate plus any surcharges.

 

In the case of services that go beyond full hours of performance, the half-hour started will be taken into account.

 

The hourly rate is taken into account for all management consultants in the consulting company; paperwork and similar services are charged at 50% of the normal hourly rate.

 

Services that are performed automatically for the client in the management consultant’s office are subject to an hourly surcharge of 25%; the associated material costs will be invoiced separately under “ancillary costs”.

 

In the case of trips to fulfill the advisory assignment, the travel time will be invoiced at rates based on the time required. Waiting time also count as travel times if this hinders or prevents the exercise of another activity and insofar as the management consultant is not responsible for them. Travel and waiting times are not to be taken into account for the use of a sleeping car or for overnight stays while traveling. Travel takes place with the consent of the client; in urgent cases, approval can also be obtained retrospectively.


 

Extra charges

Extra charges are expenses that the management consultant incurs in carrying out the order and which are borne by the client in addition to the fee. The additional costs include in particular:

 

  • traveling expenses
  • Costs f. fax, telephone, telegram etc. are valid as proof
  • stamps, fees, etc.
  • Reproduction such as copies, printed matter, procurement, etc. documents
  • Additional costs as time expenditure according to the hourly rate
  • Additional time expenditure with a surcharge of 20% to cover d. office expenses
  • Providing a service requires special devices, the constant maintenance of which cannot be expected of the consultant, these must be provided by the client; however, if these devices are available form the management consultant, aliquot imputed costs plus a surcharge of 20% will be invoiced.

 

Extra costs

 

  • Services that go beyond the usual scope of business consulting will be invoiced separately. These are for example:
  • Preliminary work that serves the procurement of documents for the fulfillment of the task or the procurement of such services from third parties, unless these are provided by the client.
  • Working in special fields, safeguarding the client’s interests vis-à-vis third parties – e.g. in the event of disputes – or the procurement of such services from third parties.
  • Production of models, implementation of model tests and laboratory tests, etc. 
  • Services after complementing the task, such as success control.
  • Costs of other professionals who need to be called in to fulfill the order, e.g. professions that fulfill the reserved task, unless the order was placed directly by the client.

If the management consultant bills the special services of third parties, only the rate for office expenses is added to the special costs. According to the possible turnover, special services, if they are foreseeable, are already listed in the consulting contract or should be pointed out to. 

 

Payment on account

30% of the estimated total amount when the order is placed. Interim invoices for services rendered are to be agreed, if necessary, especially in the case of high ancillary costs – provided these are not settled directly by the client (e.g. flight tickets, etc.).

 

Copyright

The client acknowledges the corporate consultant’s copyright to the works created by him. Reproduction or distribution requires the written approval of the management consultant.

 

ad § 11. Electronic billing

One of the legal requirements for the admissibility of electronic invoicing by the contractor (management consultant) is the consent of the invoice recipient (contractor).

 

Other

The place of jurisdiction would have tobe explicitly agreed again in the contractual agreement with the customer. The company’s headquarters are in Vienna, so the place of jurisdiction is Vienna, the Republic of Austria.