General Terms and Conditions
1. General Principles / Scope
1.1 These General Terms and Conditions apply exclusively to all legal transactions between the client and the contractor (WINTER Leadership GmbH.) – hereinafter only referred to as the contractor. The version valid at the time the contract is concluded shall prevail.
1.2 These General Terms and Conditions also apply to all future contractual relationships, even if no express reference is made to them in supplementary agreements.
1.3 Conflicting General Terms and Conditions of the client are invalid unless the contractor expressly acknowledges them in writing.
1.4 In the event that individual provisions of these General Terms and Conditions are 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 that comes as close as possible to its meaning and economic purpose.
2. Scope of the Consulting Assignment / Representation
2.1 The scope of a specific consulting assignment shall be contractually agreed in individual cases.
2.2 The contractor is entitled to have the tasks incumbent upon it performed in whole or in part by third parties. The third parties shall be paid exclusively by the contractor itself. No direct contractual relationship of any kind shall arise between the third parties and the client.
2.3 The client undertakes not to enter into any business relationship whatsoever with persons or companies that the contractor uses to fulfill its contractual obligations during and up to three years after the end of this contractual relationship. In particular, the client shall not commission these persons and companies with such or similar consulting services that the contractor also offers.
3. Duty of Disclosure of the Client / Declaration of Completeness
3.1 The client shall ensure that the organizational framework conditions at the locations where the commissioned measure(s) are carried out allow for work that is as undisturbed as possible and conducive to the rapid progress of the consulting process.
3.2 The client shall also comprehensively inform the contractor about previously carried out and/or ongoing consultations – also in other specialist areas.
3.3 The client shall ensure that the contractor is provided with all documents necessary for the fulfillment and execution of the consulting assignment in a timely manner, even without being specifically requested to do so, and that it is informed of all processes and circumstances that are of significance for the execution of the consulting assignment. This also applies to all documents, processes and circumstances that only become known during the contractor’s activities.
3.4 The client shall ensure that its employees and the legally prescribed and, if applicable, established employee representation (works council) are informed of this by the contractor before the start of the contractor’s activities.
4. Securing 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 endangerment of the independence of the commissioned third parties and employees of the contractor. This applies in particular to offers from the client for employment or the acceptance of orders on their own account.
5. Reporting / Reporting Obligation
5.1 The contractor undertakes to report to the client on its work, the work of its employees and, if applicable, also the work of commissioned third parties in accordance with the progress of the work.
5.2 The final report, which may have to be agreed, shall be received by the client within a reasonable period of time, i.e. two to four weeks, depending on the nature and scope of the consulting assignment after completion of the assignment.
5.3 The contractor is not bound by instructions when producing the agreed work, acts at its own discretion and on its own responsibility. He/she is not bound to any specific place of work or working hours.
6. 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, service descriptions, drafts, calculations, drawings, data carriers, films, photos and other representations, etc.) 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 is therefore not entitled to reproduce and/or distribute the work(s) without the express consent of the contractor. Under no circumstances shall an unauthorized reproduction/distribution of the work give rise to any liability on the part of the contractor – in particular, for example, for the correctness of the work – towards third parties.
6.2 The client’s violation of these provisions entitles the contractor to immediately terminate the contractual relationship prematurely and to assert other legal claims, in particular for injunctive relief and/or damages.
7. Warranty
7.1 Irrespective of any fault, the contractor is entitled and obliged to remedy any inaccuracies and defects in its service that become known within the scope of the statutory warranty. It will inform the client of this immediately.
7.2 This claim of the client expires six months after the provision of the respective service.
8. Liability / Compensation
8.1 The contractor is liable to the client for damages – with the exception of personal injury – only in the event of gross negligence (intent or gross negligence). This also applies mutatis mutandis to damages that are attributable to third parties called in by the contractor.
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, but at the latest within three years of the event giving rise to the claim.
8.3 The client must in each case provide proof that the damage is attributable to a fault on the part of the contractor.
8.4 If the contractor provides the work with the help of third parties and warranty and/or liability claims arise against these third parties in this context, the contractor assigns these claims to the client. In this case, the client shall primarily turn to these third parties.
9. Confidentiality / Data Protection
9.1 The contractor undertakes to maintain absolute secrecy about all business matters that come to its knowledge, in particular business and trade secrets, as well as any information that it receives about the nature, scope of operations and practical activities of the client.
9.2 Furthermore, the contractor undertakes to maintain secrecy towards third parties regarding the entire content of the work as well as all information and circumstances that have come to its knowledge in connection with the creation of the work, in particular also regarding the data of clients of the client.
9.3 The contractor is released from the obligation to maintain secrecy towards any assistants and representatives that it uses. However, it must fully transfer the obligation to maintain secrecy to these and is liable for their violation of the obligation of confidentiality as for its own violation.
9.4 The obligation to maintain secrecy extends indefinitely beyond the end of this contractual relationship. Exceptions exist in the case of statutory obligations to testify.
9.5 The contractor is entitled to process personal data entrusted to it within the scope of the intended purpose of the contractual relationship. The client warrants to the contractor that all necessary measures, in particular those within the meaning of the Data Protection Act, such as declarations of consent from the data subjects, have been taken for this purpose.
10. Fee
10.1 After completion of the agreed work, the contractor shall receive a fee in accordance with the agreement between the client and the contractor. The contractor is entitled to submit interim invoices in accordance with the progress of the work and to demand advance payments corresponding to the respective progress. The fee is due in each case upon invoicing by the contractor.
10.2 The contractor will issue an invoice entitling to deduct input tax with all legally required features.
10.3 Any cash expenses, expenses, travel costs, etc. incurred shall be reimbursed by the client in addition to the contractor’s invoice.
10.4 If the execution of the agreed work is omitted for reasons that lie with the client, or due to a justified premature termination of the contractual relationship by the contractor, the contractor retains the right to payment of the entire agreed fee less saved expenses. In the case of an agreed hourly fee, the fee for the number of hours that would have been expected for the entire agreed work, less the expenses saved, shall be paid. The saved expenses are agreed as a lump sum of 30 percent of the fee for those services that the contractor has not yet provided by the date of termination of the contractual relationship.
10.5 In the event of non-payment of interim invoices, the contractor is released from its obligation to provide further services. However, the assertion of further claims resulting from the non-payment shall not be affected thereby.
11. Electronic Invoicing
11.1 The contractor is entitled to send invoices to the client in electronic form. The client expressly agrees to the sending of invoices in electronic form by the contractor.
12. Duration of the Contract
12.1 This contract ends in principle with the completion of the project and the corresponding invoicing.
12.2 Notwithstanding this, the contract can be terminated at any time for good cause by either party without observing a period of notice. An important reason is in particular to be seen as
If a contracting party violates essential contractual obligations, or
if a contracting party defaults on payment after the opening of insolvency proceedings, or
if there are justified concerns regarding the creditworthiness of a contracting party over which no insolvency proceedings have been opened and this party, at the request of the contractor, neither makes advance payments nor provides suitable security before the contractor provides the service and the poor financial circumstances of the other contracting party were not known at the time the contract was concluded.
13. Final Provisions
13.1 The contracting parties confirm that all information in the contract has been provided conscientiously and truthfully and undertake to immediately notify each other of any changes.
13.2 Amendments to the contract and these General Terms and Conditions must be made in writing; the same applies to any waiver of this formal requirement. There are no verbal side agreements.
13.3 This contract is subject to Austrian substantive law to the exclusion of the reference norms of international private law and the UN Convention on Contracts for the International Sale of Goods. The place of performance is the place of the contractor’s business establishment. The court at the contractor’s place of business has jurisdiction over disputes.
14. Mediation Clause
14.1 In the event of disputes arising from this contract that cannot be settled amicably, the contracting parties mutually agree to involve registered mediators (ZivMediatG) with a focus on business mediation from the list of the Ministry of Justice for the out-of-court settlement of the conflict. Should no agreement be reached on the selection of the business mediators or on the content, legal action will be taken at the earliest one month after the failure of the negotiations.
14.2 In the event of a mediation that has not been concluded or has been broken off, Austrian law shall apply in any court proceedings initiated. All necessary expenses incurred as a result of a previous mediation, in particular also those for legal advisors called in, can be asserted by agreement in court or arbitration proceedings as “pre-trial costs”.
Headoffice Salzburg
Hauptsrasse 22
A-5112 Lamprechtshausen
+43 720 555 444
austria@winter-leadership.com
Office West
Griesbachweg 2
A-6372 Oberndorf/Kitzbuehel
+43 720 555 444
austria@winter-leadership.com
Office East
Prinz Eugen Strasse 80/1/12
A-1040 Wien
+43 720 555 444
austria@winter-leadership.com