These General Terms and Conditions of Business shall apply exclusively to all legal transactions between the Client and the Contractor (Capscale Group GmbH). The version valid at the time of the conclusion of the contract shall be authoritative in each case.
These General Terms and Conditions of Business shall also apply to all future contractual relationships, thus even if no express reference is made to them in the case of additional contracts.
Conflicting general terms and conditions of the client are invalid, unless they are expressly accepted in writing by the contractor.
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 advisory mandate / deputisation
The scope of a specific consulting assignment is contractually agreed on a case-by-case basis.
The Contractor 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 Contractor itself. There is no direct contractual relationship of any kind between the third party and the client.
The Client undertakes not to enter into any business relationship whatsoever with persons or companies which the Contractor uses to fulfil its contractual obligations during or up to three years after the termination of this contractual relationship. In particular, the Client shall not commission these persons and companies with such or similar consulting services that are also offered by the Contractor.
Client's duty of disclosure / declaration of completeness
The client shall ensure that the organisational framework conditions for the fulfilment of the consultancy assignment at its place of business allow the work to be carried out as undisturbed as possible and are conducive to the rapid progress of the consultancy process.
The Client shall also inform the Contractor comprehensively about previously performed and/or ongoing consultations - also in other specialist areas.
The Client shall ensure that the Contractor is provided with all documents necessary for the fulfilment and execution of the consulting order in a timely manner, even without the Contractor's special request, and that the Contractor is informed of all processes and circumstances that are of importance for the execution of the consulting order. This also applies to all documents, processes and circumstances that only become known during the consultant's work.
The Client shall ensure that its employees and the employee representation (works council) provided for by law and established, if any, are informed by the Contractor prior to the commencement of the Contractor's activities.
Safeguarding independence
The contracting parties undertake to be loyal to each other.
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 jeopardised. This applies in particular to offers made by the client for employment or the acceptance of orders on his own account.
Reporting / Reporting obligation
The Contractor undertakes to report to the Client on its work, that of its employees and, if applicable, that of commissioned third parties, in accordance with the progress of the work.
The client receives 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.
The contractor is free from instructions in the production of the agreed work, acts at his own discretion and on his own responsibility. He is not bound to any particular place of work or working hours.
Protection of intellectual property
The copyrights to the works created by the Contractor and its employees and commissioned third parties (in particular offers, reports, analyses, expert opinions, organisational plans, programmes, performance descriptions, 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. In this respect, the client is not entitled to reproduce and/or distribute the work(s) without the express consent of the contractor. Under no circumstances shall an unauthorised reproduction/dissemination of the work give rise to any liability on the part of the contractor - in particular, for example, for the correctness of the work - vis-à-vis third parties.
The Client's violation of these provisions shall entitle the Contractor to immediately terminate the contractual relationship prematurely and to assert other legal claims, in particular for injunctive relief and/or damages.
Warranty
The Contractor shall be entitled and obliged, irrespective of fault, to remedy any inaccuracies and defects in its performance that become known. He will inform the client of this without delay.
This claim of the client expires after six months after the respective service has been rendered.
Liability / Compensation
The Contractor shall only be liable to the Client for damages - with the exception of personal injuries - in the event of gross negligence (intent or gross negligence). This shall also apply mutatis mutandis to damage caused by third parties engaged by the contractor.
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.
In each case, the client must provide evidence that the damage is due to the fault of the contractor.
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 Client. In this case, the client will give priority to these third parties.
Secrecy / data protection
The Contractor undertakes to maintain absolute silence with regard to all business matters of which it becomes aware, in particular business and trade secrets as well as any information which it receives about the nature, scope of operation and practical activities of the Client.
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 which he has received in connection with the creation of the work, in particular also about the data of clients of the Client.
The contractor is released from the duty of confidentiality towards any assistants and substitutes he uses. However, he has to transfer the duty of confidentiality to them completely and is liable for their breach of the duty of confidentiality as for his own breach.
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.
The contractor is entitled to process personal data entrusted to him within the scope of the purpose of the contractual relationship. The Client warrants 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.
Fee
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 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 is due in each case upon invoicing by the contractor.
In each case, the contractor shall issue an invoice entitling the customer to deduct input tax and containing all the legally required features.
Any cash expenses, out-of-pocket expenses, travel expenses, etc. incurred shall be reimbursed by the Client in addition against invoicing by the Contractor.
If the agreed work is not carried out for reasons on the part of the Client or due to a justified premature termination of the contractual relationship by the Contractor, the Contractor shall retain the right to payment of the entire agreed fee less any expenses saved. In the event that an hourly fee is 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 expenses saved 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.
In the event of non-payment of interim invoices, the Contractor 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
The Contractor 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 the contractor.
term of agreement
This contract ends in principle with the completion of the project.
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 regarding the creditworthiness of a contractual partner in respect of whom insolvency proceedings have not been opened and the contractual partner does not make advance payments at the request of the contractor or provide 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
The contracting parties confirm that they have provided all the information in the contract conscientiously and truthfully and undertake to notify each other immediately of any changes.
Amendments to the contract and these General Terms and Conditions must be made in writing; likewise any waiver of this formal requirement. There are no oral ancillary agreements.
This contract shall be governed by Austrian substantive law to the exclusion of the conflict of laws rules of private international law (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.
