Terms & Conditions
1. General principles / scope of application
1.1. These Terms & Conditions apply exclusively to all legal transactions between the customer and the contractor. The version valid at the time of the conclusion of the contract is decisive in each case.
1.2. These Terms & Conditions apply to all future contractual relationships, even if no express reference is made to them in additional contracts.
1.3. Any conflicting Terms & Conditions of the customer are invalid unless expressly accepted by the contractor in writing.
1.4. In the event that individual provisions of these Terms & Conditions are 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.
2. Scope and validity of the consulting order / Substitution
2.1. The scope of a specific consulting assignment is contractually agreed in each individual case.
2.2. The contractor is entitled to have all or part of the tasks incumbent upon him performed by third parties. Payment of the third party shall be made exclusively by the contractor himself. No direct contractual relationship of any kind whatsoever shall arise between the third party and the client.
2.3. The customer is under obligation not to enter into any kind of business relationship with persons or companies, which the contractor uses to fulfil his contractual obligations, during and until three years after termination of this contractual relationship. In particular, the client shall not commission these persons and companies with such or similar consulting services as are also offered by the contractor.
2.4. All orders and agreements are only legally binding if they have been signed by the contractor in writing and in accordance with the company and are only binding to the extent specified in the order confirmation. The client's terms and conditions of purchase are hereby excluded for the legal transaction in question and the entire business relationship. Offers are always non-binding.
3. Service and validation
3.1. The development of individual organizational, consulting and strategic projects as well as IT programs, with or business psychological test batteries, shall be carried out according to the type and scope of binding information, documents and aids provided in full by the client. This also includes practical test data as well as sufficient testing possibilities, which the client provides on time, during normal working hours and at their own expense. If the client is already working in live operation on the system provided for testing, the responsibility for saving the real data lies with the client.
3.2. The basis for the creation of individual IT programs and business psychological test structures is the written service description, which the contractor prepares against cost calculation on the basis of the documents and information made available to him and/or the client makes available. This service description is to be checked by the client for correctness and completeness and to be provided with his approval note. Later requests for changes can lead to separate appointments and price agreements.
3.3. Individually created test batteries, software or program adaptations require acceptance by the customer at the latest two weeks after delivery or transmission of the final report. Acceptance is confirmed by the customer in a protocol (check for correctness and completeness on the basis of the service description accepted by the contractor using the test data provided under point 3.2). If the customer allows the period of two weeks to elapse without acceptance, the delivered service shall be deemed to have been accepted on the end date of the said period. If the test battery or software is used in live operation by the customer, it is considered accepted in any case.
Any defects that may occur, that are deviations from the service description agreed in writing, must be adequately documented by the customer and reported to the contractor, who will endeavor to rectify the defects as quickly as possible. If significant defects have been reported in writing, i.e. live operation cannot be started or continued, a new acceptance is required after the defects have been rectified.
The customer is not entitled to refuse the acceptance of test batteries or software due to insignificant defects.
3.4. When ordering services, the customer confirms knowledge of the scope of services with the order.
3.5. Should it become apparent in the course of the work that the execution of the order according to the service description is actually or legally impossible, the contractor is obliged to notify the customer immediately. If the customer does not change the service description in such a way or does not create the prerequisite that an execution becomes possible, the contractor can reject the execution. If the impossibility of execution is the result of a failure on the part of the customer or a subsequent amendment of the service description by the customer, the contractor is entitled to withdraw from the order. The costs and expenses incurred by the contractor up to that point as well as any dismantling costs shall be reimbursed by the customer.
3.6. Any dispatch of program carriers, documentation and service descriptions shall be at the expense and risk of the client. Training and explanations additionally requested by the client will be invoiced separately. Insurance will only be taken out at the request of the client.
4.1. The contracting parties commit themselves to mutual loyalty. They will refrain from any enticement and employment, also through third parties, of employees who have worked on the realization of the orders of the other contracting party during the duration of the contract and 12 months after termination of the contract. The breaching contractual partner is obliged to pay lump sum compensation in the amount of the employee's annual salary.
5. Reporting / Reporting obligation
5.1. The contractor undertakes to report on his work, that of his employees and, if applicable, also that of the commissioned third parties in accordance with the progress of the work to the client.
5.2. The client receives the final report within a reasonable time, i.e. up to two weeks, depending on the type of consulting assignment, after completion of the assignment or as completion of the assignment.
5.3. The contractor is free from instructions in the production of the agreed work, acts at his own discretion and on his own responsibility. The contractor is not bound to any particular place of work and no particular working hours.
6. Protection of intellectual property, copyright and use
6.1. The copyrights to the works created by the contractor and his employees and commissioned third parties (in particular offers, reports, analyses, expert assessments, organizational and structural plans, test batteries, psychological test developments, monitoring, programs, service descriptions, drafts, calculations, drawings, data carriers, etc.) remain with the contractor. They may only be used by the client during and after termination of the contractual relationship for purposes covered by the contract. In this respect, the client is not entitled to copy and/or distribute the work(s) without the express consent of the contractor. Under no circumstances shall unauthorized duplication/ distribution of the work give rise to liability on the part of the contractor towards third parties - in particular for the correctness of the work.
6.2. The violation of these provisions by the customer entitles the contractor to an immediate premature termination of the contractual relationship and to assert other legal claims, in particular to injunctive relief and/or compensation.
6.3. After payment of the agreed fee, the contractor grants the client a non-exclusive, non-transferable, non-sub licensable and perpetual right to use the software, test batteries, strategic concepts, thus all work results created on the basis of the contractor's contract for their own internal use. All other rights remain with the contractor.
The Client's cooperation in the production of the software or other results of the respective order shall not give rise to any rights over the use specified in the present contract. Any infringement of the Contractor's copyrights or proprietary notices shall result in claims for compensation, in which case full satisfaction shall be paid.
6.4. The client is permitted to make copies for archiving and data backup purposes on condition that all copyright and property notices are transferred unchanged into these copies.
6.5. Should the disclosure of the interfaces be necessary for the production of interoperability of the software in question, this shall be commissioned by the customer against reimbursement of costs from the contractor. If the contractor does not comply with this requirement and decompilation takes place in accordance with copyright law, the results are to be used exclusively for the establishment of interoperability. Misuse will result in damages.
6.6. If the customer is provided with software whose license holder is a third party (e.g. standard software from Microsoft), the right of use shall be granted in accordance with the license provisions of the license holder (manufacturer).
7. Warranty, maintenance, modifications
7.1. The contractor warrants that the test batteries, analysis results or software will perform the functions described in the associated documentation, provided that the software is used on the operating system described in the agreement or the analyses and test batteries are used for the purposes specified in the agreement.
7.2.1. The prerequisite for remedying the fault is that
the customer describes the error sufficiently in an error message and this can be determined by the contractor;
the customer provides the contractor with all documents required to rectify the defect;
the client or a third party attributable to him has not interfered with the software, test batteries or analysis results;
the software or test batteries are operated under the specified operating conditions in accordance with the documentation.7.2.2. In the event of warranty, improvement shall take precedence over price reduction or conversion. In the event of justified notification of defects, the defects shall be remedied within a reasonable period of time, whereby the customer shall enable the contractor to take all measures necessary to examine and rectify the defects.
The presumption of defectiveness according to § 924 ABGB is excluded.
7.2.3. Corrections and additions which prove to be necessary until the agreed service is handed over due to organizational and technical program defects for which the contractor is responsible shall be carried out by the contractor free of charge.
7.3. Costs for assistance, misdiagnosis as well as fault and malfunction rectification for which the customer is responsible as well as other corrections, changes and additions shall be carried out by the contractor against payment. This also applies to the elimination of defects if changes to the specifications, program changes, additions or other interventions have been made by the client himself or by a third party.
7.4. Furthermore, the contractor shall not be liable for errors, malfunctions or damage caused by improper operation, modified operating system components, interfaces and parameters, use of unsuitable organizational means and data carriers, insofar as such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) or transport damage.
7.5. For programs, test batteries or strategic concepts or scenarios that are subsequently modified by the client's own programmers or employees or third parties, any warranty by the contractor shall lapse.
7.6. If the subject of the order is the modification or addition of already existing programs, tools or concepts, the warranty refers to the modification or addition. The warranty for the original program, tool or concept does not revive.
7.7. Warranty claims prescribe six (6) months after delivery.
8. Accountability / Compensation
8.1. The contractor shall only be liable to the customer for damages demonstrably caused by him in the event of gross negligence. This also applies analogously to damages that can be attributed to third parties called in by the contractor. In case of culpable damage to persons, the contractor is liable without limitation.
8.2. Liability for indirect damages - such as loss of profit, costs associated with business interruption, data loss or third-party claims - is expressly excluded.
8.3. Claims for damages become statute-barred in accordance with the statutory provisions, but at the latest one year after the damage and the injuring party become aware of them.
8.4. If the contractor performs the work with the help of third parties and warranty and/or liability claims against these third parties arise in this connection, the contractor assigns these claims to the customer. In this case, the client will give priority to these third parties.
8.5. The customer must prove in each case that the damage is due to the fault of the contractor.
8.6. If data backup is expressly agreed as a service, liability for the loss of data is not excluded in deviation from item 7.2, however, for the restoration of the data is limited to a maximum of EUR 10% of the order sum per case of damage, however, a maximum of EUR 15.000,--. Further warranty claims and claims for damages of the customer than those mentioned in this contract - on whatever legal grounds - are excluded.
9. Confidentiality / Data protection
9.1. The contractor undertakes to maintain complete confidentiality about all business matters which come to his knowledge, in particular business and trade secrets as well as any information which he receives about the type, scope and practical activity of the client.
9.2. Furthermore, the contractor undertakes to maintain silence towards third parties regarding 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 regarding the data of the client's clients.
9.3. The contractor is released from the duty of confidentiality towards any assistants and representatives to whom he makes use of. However, he has to completely transfer the duty of confidentiality to them. The contractor obliges his employees to comply with the provisions of § 15 of the Data Protection Act.
9.4. The contractor is entitled to process personal data entrusted to him within the scope of the purpose of the contractual relationship. The customer warrants to the contractor that all necessary measures have been taken for this, in particular those within the meaning of the Data Protection Act, such as declarations of consent by the parties concerned.
10. Fee / Payment
10.1. After completion of the agreed work, the contractor shall receive a fee in accordance with the agreement between the customer and the contractor. The contractor is entitled to submit interim invoices in accordance with the progress of the work and to demand instalments in accordance with the respective progress. Invoices submitted by the contractor including value added tax are due without any deductions and payable free of expenses upon invoicing by the contractor. The terms of payment specified for the entire order shall apply analogously to partial invoices.
10.2. The contractor shall issue an invoice entitling to deduct input tax with all legally required features.
10.3. Any cash outlays, expenses, travel costs, etc. incurred shall be additionally reimbursed by the client against the contractor's invoice.
10.4. If the execution of the agreed work is not carried out for reasons on the part of the principal 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. If an hourly fee has been agreed, the fee for the number of hours that was to be expected for the entire agreed work, less the saved expenses, is to be paid. The expenses saved are agreed at a flat rate of 30 percent of the fee for those services which the contractor has not yet rendered by the day of termination of the contractual relationship.
10.5. In the event of non-payment of interim invoices, the contractor is released from his obligation to provide further services. The assertion of further claims resulting from non-payment is not affected by this.
10.6. In the case of orders comprising several units (e.g. workshops and/or training, implementation in partial steps), the contractor is entitled to invoice each individual unit or service after delivery.
10.7. Compliance with the agreed payment dates is an essential condition for the performance of the delivery or performance of the contract by the contractor. Non-compliance with the agreed payments entitles the contractor to stop the work in progress and to withdraw from the contract. All associated costs as well as the loss of profits are to be borne by the client.
In the event of default in payment, default interest will be charged at the usual bank rate. In the event of non-compliance with two instalments in the case of partial payments loan default (‘Terminverlust’) becomes effective and the contractor shall be entitled to demand payment of all accepted payments.
10.8. The customer is not entitled to withhold payments due to incomplete overall delivery, guarantee or warranty claims or defects.
11. Electronic invoicing
11.1. The contractor is also entitled to send invoices to the principal in electronic form. The customer expressly agrees to the sending of invoices in electronic form by the contractor.
12. Prices, taxes and fees
12.1. All prices are in Euro without VAT. They apply only to the present order. The prices quoted are ex the contractor's place of business. The costs of program carriers (e.g. CDs, magnetic tapes, magnetic disks, floppy disks, streamer tapes, magnetic tape cassettes, etc.), workshop documents and any contract fees will be invoiced separately.
12.2. For all services (organizational consulting, programming, training, conversion support, telephone consulting, etc.), the workload is charged at the rates valid on the day the service is provided. Deviations from a time expenditure on which the contract price is based, for which the contractor is not responsible, shall be calculated according to the actual amount incurred.
12.3. The costs for travel, daily and overnight expenses shall be invoiced to the customer separately according to the respective valid rates. Travel times are considered working hours.
13. Delivery date
13.1. The contractor shall endeavor to meet the agreed deadlines for performance (completion) as precisely as possible.
13.2. The desired performance dates can only be met if the customer provides all necessary work and documents in full on the dates specified by the contractor, in particular the service description accepted by him in accordance with item 2.3 and fulfils his obligation to cooperate to the required extent.
Delays in delivery and cost increases resulting from incorrect, incomplete or subsequently changed information or documents provided are not the responsibility of the contractor and cannot lead to the contractor's delay. Any resulting additional costs shall be borne by the customer.
13.3. In the case of orders comprising several units, the contractor is entitled to make partial deliveries or to issue partial invoices.
14. Duration of the contract
14.1. The contract ends with the completion of the project.
14.2. Irrespective of this, the contract can be terminated by either party at any time for important reasons without observing a period of notice. An important reason is to be considered in particular,
- if a contractual partner violates essential contractual obligations or
- if a contractual partner is in default of payment after the opening of insolvency proceedings,
- if there are justified concerns regarding the creditworthiness of a contractual partner for whom no insolvency proceedings have been opened and if the latter neither makes advance payments at the request of the contractor nor provides suitable security prior to the performance of the contractor and the other contractual partner was not aware of the poor financial circumstances when the contract was concluded.
15. Right of withdrawal
15.1. In the event that an agreed delivery period is exceeded through the sole fault or unlawful action of the contractor, the principal is entitled to withdraw from the relevant order by registered letter, if the agreed service is not rendered in essential parts within the reasonable period of grace and the principal is not at fault for this.
15.2. Force majeure, labor disputes, natural disasters and transport disruptions as well as other circumstances beyond the contractor's control release the contractor from the delivery obligation or allow him to redefine the agreed delivery period.
15.3. Cancellations by the customer are only possible with the written consent of the contractor. If the contractor agrees to a cancellation, he has the right to charge, in addition to the services rendered and accrued costs, a cancellation fee in the amount of 30% of the order value of the entire project not yet invoiced.
16.1. Should individual provisions of this contract be or become invalid, this shall not affect the remaining content of this contract. The contracting parties will work together in partnership to find a provision that comes as close as possible to the invalid provisions.
17. Final clauses
17.1. The contracting parties confirm that they have given all information in the contract conscientiously and truthfully and undertake to notify each other immediately of any changes.
17.2. Amendments to the contract and these general Terms & Conditions must be made in writing, as must a deviation from this formal requirement. Oral collateral agreements do not exist.
17.3. This contract shall be governed by substantive Austrian law to the exclusion of the conflict of law rules of private international law. Place of performance is the place of business of the contractor (HILL-AMC Management GmbH). The court at the contractor's place of business (HILL-AMC Management GmbH) is competent for disputes.
The professional association of management consultancy and information technology recommends the following mediation clause as a business-friendly means of dispute resolution:
(1) In the event of disputes arising from this contract which cannot be settled by mutual agreement, the contracting parties agree by mutual agreement to consult registered mediators (ZivMediatG) with the focus on economic mediation from the list of the Ministry of Justice for an extrajudicial settlement of the conflict. Should it not be possible to reach agreement on the selection of economic mediators or on the content, legal action will be initiated at the earliest one month after the failure of the negotiations.
(2) In the event of a mediation that has not come into being or has been terminated, Austrian law shall apply in any court proceedings initiated.
All necessary expenses incurred as a result of prior mediation, in particular also those for a legal advisor(s) called in, may be asserted as "pre-litigation costs" as agreed in court or arbitration proceedings.
Vienna, February 2018
HILL-AMC Management GmbH