AGB

General conditions of contract for accounting professions

Established by the Working Group for Fees and Conditions of Contract of the Chamber of Public Accountants and Tax Advisors and recommended for application by the Board of the Chamber of Public Accountants and Tax Advisors by resolution of 8.3.2000, adapted by the Working Group for Fees and Conditions of Contract on 23.5.2002, on 21.10.2004, on 18.12.2006, on 31.8.2007, on 26.2.2008, on 30.6.2009, on 22.3.2010 and on 21.02.2011.

Preamble and General

(1) These General Conditions of Contract for Public Accounting Professions are divided into four parts: Part I concerns contracts for work and services, with the exception of contracts for the keeping of accounts, personnel processing and tax accounting; Part II concerns contracts for work and services for the keeping of accounts, personnel processing and tax accounting; Part III concerns contracts other than contracts for work and services; and Part IV concerns consumer contracts. Part IV deals with consumer transactions.
(2) It shall apply to all parts of the terms and conditions of the order that if individual provisions should be invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid provision that comes as close as possible to the intended objective.
(3) For all parts of the Conditions of Contract it shall further apply that the person entitled to exercise a profession of an auditor shall be obliged to act in accordance with the principles of proper professional practice when performing the agreed service. He is entitled to use suitable employees for the execution of the order.
(4) Finally, it shall apply to all parts of the Conditions of Contract that foreign law shall only be taken into account by the person entitled to exercise the profession if expressly agreed in writing.
(5) The work prepared in the office of the person entitled to exercise the profession may, at the choice of the person entitled to exercise the profession, be prepared either with or without electronic data processing. In the event that electronic data processing is used, the client, not the person entitled to exercise the profession, shall be obliged to carry out the registrations or notifications required by the DPA.
(6) The client undertakes not to employ employees of the person entitled to exercise the profession in his/her company or in a company related to him/her during and within one year after termination of the contractual relationship, otherwise he/she undertakes to pay the person entitled to exercise the profession one annual salary of the employee taken over.

I.PART

1. scope

(1) The Terms and Conditions of Contract of Part I shall apply to contracts for (statutory and voluntary) audits with and without an auditor’s opinion, expert opinions, court expert opinions, preparation of annual and other financial statements, tax advisory services and other activities to be performed under a contract for work and services, with the exception of bookkeeping, personnel administration and tax accounting.
(2) The terms and conditions of the order shall apply if their application is expressly or tacitly agreed. Furthermore, in the absence of any other agreement, they are an aid to interpretation.
(3) Item 8 shall also apply to third parties who are called upon by the Agent to fulfill the order in individual cases.

2. scope and execution of the order

(1) Reference is made to paragraphs 3 and 4 of the preamble.
(2) If the legal situation changes after the submission of the final professional written as well as oral statement, the person entitled to exercise the profession shall not be obliged to inform the client about changes or consequences resulting therefrom. This also applies to completed parts of an order.
(3) An application submitted electronically by the person entitled to exercise the profession to an authority (e.g. tax office, social insurance agency) shall be deemed not to have been signed by him or her or by the transmitting authorized representative.

3. duty of the client to provide information; declaration of completeness

(1) The client shall ensure that the person entitled to exercise the profession is provided with all documents required for the execution of the contract in due time, even without being specifically requested to do so, and that he/she is informed of all processes and circumstances which may be of importance for the execution of the contract. This also applies to documents, processes and circumstances that only become known during the activity of the person entitled to exercise the profession.
(2) The client shall confirm in writing to the person entitled to exercise the profession the completeness of the documents submitted as well as the information and explanations given in the case of tests, expert opinions and expert activities. This representation letter may be submitted on standard professional forms.
(3) If significant risks have not been disclosed by the Client during the preparation of annual financial statements and other financial statements, the Contractor shall have no obligation to pay compensation in this respect.

4. safeguarding independence

(1) The client shall be obliged to take all precautions to prevent the independence of the employees of the person entitled to exercise the profession from being endangered and shall refrain from any endangerment of this independence itself. This applies in particular to offers of employment and to offers to accept orders on our own account.
(2) The client agrees that his/her personal data, namely his/her name as well as the type and scope including the performance period of the services agreed upon between the person entitled to exercise the profession and the client (both audit and non-audit services), may be processed for the purpose of verifying the existence of grounds for bias or exclusion within the meaning of Sections 271 et seqq. of the Austrian Commercial Code in the Information Network (Network), to which the person entitled to exercise the profession belongs, and for this purpose shall be transmitted to the other members of the information association (network), also abroad (a list of all transmission recipients shall be sent to the client by the commissioned person entitled to exercise the profession at the client’s request). For this purpose, the client expressly releases the person authorized to exercise the profession from his duty of confidentiality in accordance with the Data Protection Act and pursuant to § 91 para. 4 no. 2 WTBG. In this context, the Customer further acknowledges that in countries that are not members of the EU, a lower level of data protection may prevail than in the EU. The client may revoke this consent at any time in writing to the person entitled to exercise the profession.

5. reporting and communication

(1) In the case of examinations and expert opinions, a written report shall be submitted unless otherwise agreed.
(2) All information and statements made by the person entitled to exercise the profession and his employees shall only be binding if they are made in writing or confirmed in writing. Written statements shall be deemed to be only those for which there is a company signature. Under no circumstances shall information provided by electronic means, in particular by e-mail, be deemed to be written statements.
(3) Transmission errors cannot be ruled out when information and data are transmitted electronically. The person entitled to exercise the profession and his/her employees shall not be liable for any damage caused by electronic transmission. Electronic transmission shall take place exclusively at the risk of the client. The client is aware that the use of the Internet does not ensure confidentiality. Furthermore, changes or additions to documents that are sent are only permitted with express consent.
(4) The receipt and forwarding of information to the person entitled to exercise the profession and his employees are not always ensured when using telephone – especially in connection with automatic answering systems, fax, e-mail and other electronic means of communication. Orders and important information shall therefore only be deemed to have been received by the person entitled to exercise the profession if they have also been received in writing, unless receipt is expressly confirmed in the individual case. Automatic transmission and read confirmations shall not be deemed to be such express confirmations of receipt. This applies in particular to the transmission of notices and other information about deadlines. Critical and important communications must therefore be sent by mail or courier to the professional authorized representative. Handing over documents to employees outside the office is not considered handing over.
(5) The client agrees to receive recurring general tax and general business law information electronically from the person entitled to exercise the profession. These are not unsolicited messages pursuant to § 107 TKG.

6. protection of the intellectual property of the person entitled to exercise the profession

(1) The client shall be obliged to ensure that the reports, expert opinions, organization charts, drafts, drawings, calculations and the like prepared by the person entitled to exercise the profession within the scope of the order are only used for the purposes of the order (e.g. pursuant to § 44 para 3 EStG 1988). In addition, the disclosure of professional written and oral statements of the person entitled to exercise the profession to a third party for use requires the written consent of the person entitled to exercise the profession.
(2) The use of written as well as oral professional statements of the person entitled to exercise the profession for advertising purposes shall be inadmissible; an infringement shall entitle the person entitled to exercise the profession to terminate without notice all orders of the client not yet executed.
(3) The person entitled to exercise the profession shall retain the copyright to his/her services. The granting of permission to use the work shall be subject to the written consent of the person entitled to exercise the profession.

7. remedy of defects

(1) The person entitled to exercise the profession shall be entitled and obliged to correct any inaccuracies and deficiencies in his/her professional written and oral statements that become apparent subsequently, and shall be obliged to inform the client thereof without delay. He is also entitled to notify third parties informed about the original statement of the change.
(2) The client shall be entitled to have any inaccuracies rectified free of charge if the contractor is responsible for them; this entitlement shall expire six months after the service rendered by the person entitled to exercise the profession or – if a written statement is not submitted – six months after the completion of the activity of the person entitled to exercise the profession that is the subject of the complaint.
(3) In the event of failure to remedy any defects, the Customer shall be entitled to a reduction in price. Insofar as claims for damages exist beyond this, point 8 shall apply.

8. liability

(1) The person entitled to exercise the profession shall only be liable for intentional and grossly negligent violation of the assumed obligations.
(2) In the event of gross negligence, the duty of the person entitled to exercise the profession to pay compensation shall amount to a maximum of ten times the minimum insurance sum of the professional liability insurance pursuant to § 11 of the Act on the Profession of Public Accountant and Tax Advisor (WTBG), as amended.
(3) Any claim for damages may only be asserted in court within six months after the person or persons entitled to claim have become aware of the damage, but at the latest within three years from the occurrence of the (primary) damage after the event giving rise to the claim, unless other limitation periods are stipulated by mandatory statutory provisions.
(4) If § 275 UGB applies to activities by virtue of mandatory law, the liability provisions of § 275 UGB shall apply insofar as they are mandatory law, even if several persons were involved in the execution of the order or several acts requiring compensation were committed, and without regard to whether other participants acted intentionally.
(5) In cases where a formal audit opinion is issued, the limitation period shall begin to run at the latest when the audit opinion is issued.
(6) If the activity is carried out with the involvement of a third party, e.g. a data processing company, and the Client is notified thereof, any warranty claims and claims for damages against the third party arising in accordance with the law and the terms and conditions of the third party shall be deemed assigned to the Client. The person entitled to exercise the profession shall only be liable for fault in the selection of the third party.
(7) The person entitled to exercise the profession shall not be liable to a third party if the client passes on written or oral professional statements without the consent or knowledge of the person entitled to exercise the profession.
(8) The above provisions shall apply not only in relation to the client, but also to third parties, insofar as the person entitled to exercise the profession is exceptionally liable for his/her activities. In any case, a third party cannot make any claims that exceed any claim of the client. The maximum liability amount shall apply only once in total to all injured parties, including the claims for compensation of the Client itself, even if several persons (the Client and a third party or also several third parties) have been injured; injured parties shall be satisfied in accordance with their prior claims.

9. duty of confidentiality, data protection

(1) Pursuant to Section 91 WTBG, the person entitled to exercise the profession shall be obliged to maintain secrecy about all matters of which he/she becomes aware in connection with his/her activities for the client, unless the client releases him/her from this obligation to maintain secrecy or statutory duties to make statements conflict with this.
(2) The person entitled to exercise the profession shall not hand over reports, expert opinions and other written statements on the results of his/her activities to third parties without the consent of the client, unless there is a legal obligation to do so.
(3) The person entitled to exercise the profession shall be authorized to process personal data entrusted to him/her within the scope of the purpose of the order or to have such data processed by third parties in accordance with Section 8 (6). Pursuant to Section 15 of the Data Protection Act, the person entitled to exercise the profession shall guarantee the obligation to maintain data secrecy. Material (data carriers, data, control figures, analyses and programs) provided to the person entitled to exercise the profession as well as all results from the performance of the work shall in principle be returned to the client in accordance with § 11 of the Data Protection Act, unless there is a written order from the client to pass on material or results to third parties. The person entitled to exercise the profession undertakes to take precautions to ensure that the client can fulfill his obligation to provide information pursuant to Section 26 of the Data Protection Act. The necessary orders of the client shall be passed on in writing to the person authorized to exercise the profession. If no fee has been agreed for such information work, the client shall be invoiced according to actual expenditure. The Customer shall comply with the obligation to inform the data subjects or to register in the data processing register, unless otherwise expressly agreed in writing.

10. termination

(1) Unless otherwise agreed in writing or mandatory by law, the contracting parties may terminate the contract at any time with immediate effect. The fee claim is determined according to item 12.
(2) However, unless otherwise agreed in writing, a standing order – which in case of doubt is always to be assumed – (also with a lump-sum payment) may only be terminated by giving three months’ notice to the end of a calendar month without good cause (cf. Section 88 (4) WTBG).
(3) In the case of a terminated standing order relationship, only those individual works whose complete or predominant execution is possible within the period of notice shall be counted as part of the remaining order status – except in cases of para. 5, whereby annual financial statements and annual tax returns shall be considered as predominantly executable within 2 months after the balance sheet date. In this case, they shall actually be completed within a period of time customary in the profession, provided that all necessary documents are made available without delay and provided that there is no good cause within the meaning of Section 88 (4) WTBG.
(4) In the event of termination pursuant to Paragraph 2, the Client shall be notified in writing within one month of which Works are still included in the order status to be completed at the time of termination of the contractual relationship.
(5) If the notice of works still to be performed is not given within this period, the standing order shall be deemed terminated upon completion of the works commenced at the time of receipt of the notice of termination.
(6) If, in the case of a standing order relationship within the meaning of paragraphs 2 and 3, more than 2 similar works (e.g. annual financial statements, tax returns, etc.) are to be completed, irrespective of the reason, the works in excess of this shall only be counted as part of the remaining order status with the express consent of the client. If necessary, this circumstance shall be expressly pointed out to the Customer in the notification pursuant to para. 4.

11. default in acceptance and failure to cooperate on the part of the customer

If the client is in default of acceptance of the service offered by the person entitled to exercise the profession, or if the client fails to cooperate in accordance with item 3 or otherwise, the person entitled to exercise the profession shall be entitled to terminate the contract without notice. Default in acceptance and failure to cooperate on the part of the client shall also entitle the person entitled to exercise the profession to claim compensation for the additional expenses incurred by him/her and for the damage caused if the person entitled to exercise the profession does not exercise his/her right to terminate the contract.

12. fee claim

(1) If the order is not executed (e.g. due to termination), the person entitled to exercise the profession shall nevertheless be entitled to the agreed remuneration if he/she was prepared to perform the service and was prevented from doing so due to circumstances caused by the client (Section 1168 of the Austrian Civil Code); in this case, the person entitled to exercise the profession shall not be required to take into account what he/she acquires or refrains from acquiring by using his/her and his/her employees’ manpower elsewhere.
(2) If the client fails to cooperate as required for the execution of the work, the person entitled to exercise the profession shall also be entitled to set a reasonable period of time for the client to do so, stating that the contract shall be deemed cancelled if the period of time expires without results; otherwise, the consequences of para. 1 shall apply.
(3) If the person entitled to exercise the profession terminates the contract untimely without good cause, he shall compensate the client for the resulting damage in accordance with Section 8.
(4) If the Principal – having been made aware of the legal situation – agrees to his previous representative duly completing the order, the order shall also be executed.

13. fee

(1) Unless gratuitousness is expressly agreed, but also nothing else, an appropriate remuneration is owed according to § 1004 and § 1152 ABGB. Unless demonstrably agreed otherwise, payments by the customer shall always be credited against the oldest debt. The fee claim of the person entitled to exercise the profession results from the agreement made between him and his client.
(2) The good understanding between the persons entitled to exercise the profession of an auditor and their clients shall be brought about, above all, by agreements on remuneration which are as clear as possible.
(3) The smallest billable unit of service is a quarter of an hour.
(4) Travel time is also usually charged to the extent necessary.
(5) The study of files in the own office, which is necessary by its nature and extent for the preparation of the person entitled to exercise the profession, may be charged separately.
(6) If an already agreed fee proves to be insufficient due to special circumstances that have subsequently emerged or special demands by the Client, renegotiations with the aim of subsequently agreeing on an appropriate fee shall be customary. This is also common practice in the case of insufficient flat fees.
(7) The persons entitled to exercise the profession shall charge the ancillary costs and the value added tax additionally.
(8) Incidental expenses also include documented or flat-rate cash expenses, travel expenses (for 1st class rail travel, sleeping car if applicable), per diems, mileage allowance, photocopying expenses and similar incidental expenses.
(9) In the event of special liability insurance requirements, the insurance premiums concerned shall be included in the ancillary costs.
(10) Furthermore, personnel and material expenses for the preparation of reports, expert opinions, etc. are also included as incidental expenses. View.
(11) For the execution of an order, the joint execution of which has been assigned to several persons entitled to exercise the profession, each of them shall be charged the fee corresponding to his activity.
(12) In the absence of other agreements, fees and advances on fees shall be due immediately after they have been claimed in writing. Interest may be charged on late payments made more than 14 days after the due date. In the case of mutual business transactions, interest on arrears in the amount of 8% above the base interest rate shall be deemed agreed (see § 352 UGB).
(13) The statute of limitations shall be governed by § 1486 ABGB (Austrian Civil Code) and shall begin to run at the end of the performance or at the time of later invoicing within a reasonable period of time.
(14) Objections to invoices may be raised in writing with the person entitled to exercise the profession within 4 weeks of the invoice date. Otherwise, the invoice shall be deemed accepted. In any case, the inclusion of an invoice in the books shall be deemed an acknowledgement.
(15) The application of § 934 ABGB (Austrian Civil Code) in the sense of § 351 UGB (Austrian Commercial Code), i.e. the rescission due to shortening by more than half for transactions between entrepreneurs, is waived.

14. miscellaneous

(1) The person entitled to exercise the profession shall be entitled to reimbursement of his/her expenses in addition to the reasonable fees or remuneration. He may demand corresponding advances and make his (continued) activity dependent on the payment of these advances. He may also make delivery of the result of performance conditional upon full satisfaction of his claims. Reference is made to the statutory right of retention (§ 471 ABGB, § 369 UGB) in this context. If the right of retention is wrongfully exercised, the person entitled to exercise the profession shall only be liable in cases of gross negligence up to the amount of his outstanding claim. In the case of continuing contracts, the provision of further services may be refused until earlier services have been paid for. This shall apply mutatis mutandis to the provision of partial services and open partial remuneration.
(2) After handing over to the client or to the subsequent public accountant all data created by the public accountant which are subject to retention, the person entitled to exercise the profession shall be entitled to delete the data.
(3) A complaint about the work of the person entitled to exercise the profession shall not entitle him/her to withhold the remuneration to which he/she is entitled pursuant to Paragraph 1, except in the case of obvious material defects.
(4) A set-off against claims of the person entitled to exercise the profession for remuneration according to Paragraph 1 shall only be permissible with undisputed or legally established claims.
(5) The person entitled to exercise the profession shall, upon request and at the expense of the client, hand over all documents which he has received from the client on the occasion of his activities. However, this shall not apply to correspondence between the person entitled to exercise the profession and his/her client and to documents held by the latter in the original and to documents subject to a retention obligation under the Money Laundering Directive. The person entitled to exercise the profession may make copies or photocopies of documents which he/she returns to the client. The client shall bear the costs for this insofar as these copies or photocopies may be required for subsequent proof of the proper fulfillment of the professional duties of the person entitled to exercise the profession.
(6) The Contractor shall be entitled to charge an appropriate fee in the event of termination of the order for further questions after termination of the order and for granting access to the relevant information on the audited company.
(7) The client shall collect the documents handed over to the person entitled to exercise the profession within 3 months after completion of the work. In case of non-collection of handed over documents, the person entitled to exercise the profession may, after two demonstrable requests to the client to collect handed over documents, put them on hold at the client’s expense and/or charge custody fees.
(8) The person entitled to exercise the profession shall be entitled to compensate due fee claims with any deposit balances, clearing funds, trust funds or other liquid assets in his/her custody, even in the case of explicit custody, provided that the client had to expect a counterclaim of the person entitled to exercise the profession.
(9) In order to secure an existing or future fee claim, the person entitled to exercise the profession shall be entitled to transfer a tax credit or other tax or contribution credit of the client to an escrow account. In this case, the client must be notified of the transfer. Thereafter, the secured amount may be collected either by agreement with the client or upon enforceability of the fee claim.

15 Applicable law, place of performance, place of jurisdiction

(1) Only Austrian law shall apply to the order, its execution and the claims arising therefrom.
(2) The place of performance shall be the place of the professional establishment of the person entitled to exercise the profession.
(3) The court of the place of performance shall be responsible for disputes.

16. supplementary provisions for examinations

(1) In the case of audits of financial statements conducted with the objective of issuing a formal audit opinion (such as, for example, §§ 268ff UGB), the engagement does not extend to the audit of whether the provisions of tax law or special provisions, such as, for example, the provisions of price law, competition restriction law and foreign exchange law, have been complied with, unless otherwise agreed in writing. The audit of the financial statements also does not cover the examination of the management of the business with regard to economy, efficiency and expediency. There is also no obligation to detect accounting falsifications and other irregularities as part of the audit of the financial statements.
(2) In the case of audits of financial statements, if the annual financial statements may be accompanied by the unqualified or qualified audit opinion, they shall be accompanied by that audit opinion which corresponds to the type of enterprise concerned.
(3) If annual financial statements are published with the auditor’s opinion, this may only be done in the form certified by the auditor or in another form expressly approved by the auditor.
(4) If the auditor revokes the audit opinion, it may not be used further. If the annual financial statements have been published with the auditor’s opinion, the revocation must also be published.
(5) The above principles shall apply mutatis mutandis to other statutory and voluntary audits of financial statements and to other audits.

17. supplementary provisions for the creation of

annual and other financial statements, for consulting activities and other activities to be performed under a contract for work and services
(1) The person entitled to exercise the profession shall be entitled to assume that the information provided by the client, in particular numerical data, is correct for the above-mentioned activities. However, he shall point out to the client any inaccuracies he has detected. The client shall submit to the person entitled to exercise the profession all documents essential for the observance of deadlines, in particular tax assessment notices, in such a timely manner that the person entitled to exercise the profession has a reasonable processing time, but at least one week.
(2) In the absence of a written agreement to the contrary, the consulting activities shall include the following activities:
a) preparation of annual tax returns for income tax or corporate income tax and value added tax, based on the annual financial statements to be submitted by the Client or prepared by the Contractor and other statements and evidence required for taxation purposes.
b) Examination of the notices concerning the a) above declarations.
c) Negotiations with the tax authorities in connection with the activities described under a) and (b) statements and notices referred to above.
d) participation in tax audits and evaluation of the results of tax audits with regard to the taxes referred to in a).
e) participation in the appeal procedure with respect to the taxes referred to in a) above. If the person entitled to exercise the profession receives a lump-sum fee for ongoing tax advice, then, in the absence of written agreements to the contrary, the fees specified under d) and e) to be remunerated separately.
(3) The processing of special individual questions of income tax, corporate income tax and unit valuation as well as all questions of value added tax, wage tax and other taxes and duties shall only be carried out on the basis of a special order. This also applies to a) the processing of one-off tax matters, e.g. in the field of inheritance tax, capital transfer tax, real estate transfer tax,
b) the defense and consultation in financial criminal proceedings,
c) advisory and expert activities in connection with formation, transformation, merger, capital increase and reduction, reorganization, entry and exit of a shareholder, sale of business, liquidation, business management consulting and other activities pursuant to §§ 3 to 5 WTBG,
d) preparing submissions to the Company Register in connection with annual financial statements, including the necessary record keeping.
(4) Insofar as the preparation of the annual VAT return is part of the assumed assignment, this does not include the review of any special accounting requirements and the review of whether all possible VAT privileges have been exercised, unless there is a demonstrable assignment in this regard.
(5) The above paragraphs shall not apply to expert activities.

PART II

18. scope

The terms and conditions of Part II of the contract apply to contracts for work and services in the field of bookkeeping, personnel processing and tax accounting.

19. scope and execution of the order

(1) Reference is made to paragraphs 3 and 4 of the preamble.
(2) The person entitled to exercise the profession shall be entitled to regard the information provided to him and the documents handed over by the client, in particular figures, as correct and complete and to base the accounting on them. The person entitled to exercise the profession is not obliged to determine inaccuracies without a separate written order. However, if he discovers any inaccuracies, he must inform the client of this.
(3) If a lump-sum fee has been agreed upon for the activities mentioned in item 18, the representation activities in connection with tax and contribution audits of all kinds, including the conclusion of settlements on tax assessment or contribution bases, reporting, filing of appeals, etc. shall be paid separately, unless otherwise agreed upon in writing.
(4) The processing of special individual questions in connection with the activities mentioned in item 18, in particular determinations regarding the existence of compulsory insurance in principle, shall only be carried out on the basis of a special order and shall be assessed in accordance with Part I or Part III of these Conditions of Contract.
(5) An application submitted electronically by the person entitled to exercise the profession to an authority (e.g. tax office, social insurance agency) shall be deemed not to have been signed by him or her or by the transmitting authorized representative.

20 Obligation of the customer to cooperate

The client shall ensure that the person entitled to exercise the profession is provided with all the information and documents required for keeping the books, processing the personnel and calculating the taxes on the agreed date, even without the client’s special request.

21. termination

(1) Unless otherwise agreed in writing, the contract may be terminated without cause by either party by giving three months’ notice to the end of a calendar month.
(2) If the client repeatedly fails to fulfill his obligation pursuant to Item 20, this shall entitle the person entitled to exercise the profession to terminate the contract immediately without notice.
(3) If the person entitled to exercise the profession defaults on the provision of services for reasons for which he/she is solely responsible, this shall entitle the client to terminate the contract immediately without notice.
(4) In the event of termination of the contractual relationship, only those works on which the Contractor is already working or which can be predominantly completed within the notice period and which the Contractor announces within one month after the termination shall count towards the order status.

22. fee and fee claim

(1) Unless otherwise agreed in writing, the fee shall be deemed to have been agreed for one contract year in each case.
(2) In the event of termination of the contract pursuant to Section 21 (2), the person entitled to exercise the profession shall retain the full fee claim for three months. This shall also apply in the event of non-compliance with the notice period by the Client.
(3) In the event of termination of the contract pursuant to Section 21 (3), the person entitled to exercise the profession shall only be entitled to fees for his/her previous services, provided that they are usable for the client.
(4) If no lump-sum fee has been agreed, the amount of the fee pursuant to Para. 2 shall be based on the monthly average of the current order year until the termination of the contract.
(5) Unless gratuitousness is expressly agreed, but also nothing else, an appropriate remuneration is owed in accordance with § 1004 and § 1152 ABGB. Unless demonstrably agreed otherwise, payments by the customer shall always be credited against the oldest debt. The fee claim of the person entitled to exercise the profession results from the agreement made between him and his client. In all other respects, the principles set forth in Section 13 (Fees) shall apply.
(6) The application of Section 934 of the Austrian Civil Code (ABGB) within the meaning of Section 351 of the Austrian Commercial Code (UGB), i.e. the avoidance due to a reduction by more than half for transactions between entrepreneurs, is waived.

23. miscellaneous

In all other respects, the provisions of Part I of the Conditions of Contract shall apply mutatis mutandis.

III. PART

24. scope

(1) The Terms and Conditions of Contract of Part III shall apply to all contracts not mentioned in the preceding parts, which are not to be considered as contracts for work and are not related to contracts mentioned in the preceding parts.
(2) In particular, Part III of the Conditions of Contract shall apply to contracts for one-time participation in negotiations, for activities as a body in insolvency proceedings, for contracts for one-time intervention and for processing of individual issues mentioned in item 17 par. 3 without the existence of a

25. scope and execution of the order

(1) Reference is made to paragraphs 3 and 4 of the preamble.
(2) The person entitled to exercise the profession shall be entitled and obliged to regard the information provided to him and the documents handed over by the client, in particular figures, as correct and complete. He has to protect the rights of the client in the financial criminal proceedings.
(3) The person entitled to exercise the profession shall not be obliged to determine inaccuracies without a separate written order. However, if he discovers any inaccuracies, he must inform the client of this.

26. the customer’s duty to cooperate

The client shall ensure that all necessary information and documents are made available to the person entitled to exercise the profession in a timely manner, even without the latter’s special request.

27. termination

Unless otherwise agreed in writing or mandatory by law, the contracting parties may terminate the contract at any time with immediate effect (§ 1020 ABGB).

28. fee and fee claim

29. miscellaneous

The references of item 23 to provisions of Part I of the Conditions of Contract shall apply mutatis mutandis.

IV. PART

30. scope

The terms and conditions of the IV. part apply exclusively to consumer transactions according to the Consumer Protection Act (Federal Act of 8.3.1979/BGBl No.140 in the currently valid version). 31 Supplementary provisions for consumer transactions
(1) The mandatory provisions of the Consumer Protection Act shall apply to contracts between persons entitled to exercise the profession and consumers.
(2) The person entitled to exercise the profession shall only be liable for intentional and grossly negligent violation of the assumed obligations.
(3) Instead of the limitation stipulated in Section 8 (2) of the General Conditions of Employment, the obligation of the person entitled to exercise the profession to pay compensation shall not be limited even in the case of gross negligence.
(4) Point 8 para. 3 AAB (assertion of claims for damages within a certain period) shall not apply.
(5) Right of withdrawal pursuant to Section 3 KSchG: If the consumer has not made his contractual declaration in the office premises permanently used by the person entitled to exercise the profession, he may withdraw from his contract application or from the contract. This withdrawal may be declared up to the conclusion of the contract or thereafter within one week; the period shall commence upon delivery to the consumer of a document containing at least the name and address of the person entitled to exercise the profession as well as instructions on the right of withdrawal, but no earlier than the conclusion of the contract. The consumer does not have the right to withdraw from the contract,
1. if he himself has initiated the business connection with the person entitled to exercise the profession or his representative for the purpose of concluding this contract,
2. if the conclusion of the contract was not preceded by discussions between the parties or their representatives, or
3. in the case of contracts where the mutual services are to be rendered immediately, if they are usually concluded by professionals outside their offices and the agreed remuneration does not exceed € 15. The withdrawal must be in writing to be legally effective. It shall be sufficient if the consumer returns a document containing his contractual statement or that of the person entitled to exercise the profession to the person entitled to exercise the profession with a note indicating that the consumer rejects the conclusion or maintenance of the contract. It is sufficient if the declaration is sent within one week. If the consumer withdraws from the contract in accordance with § 3 KSchG, the consumer has to pay 1. the person entitled to exercise the profession shall reimburse all services received together with statutory interest from the date of receipt and shall reimburse the necessary and useful expenses made by the consumer on the matter, 2. the consumer shall compensate the person entitled to exercise the profession for the value of the services provided to the clear and predominant advantage of the consumer. Pursuant to Section 4 (3) KSchG, claims for damages shall remain unaffected.
(6) Cost estimates pursuant to Section 5 of the Consumer Protection Act The consumer shall only pay a fee for the preparation of a cost estimate within the meaning of Section 1170a of the Austrian Civil Code (ABGB) by the person entitled to exercise the profession if this obligation to pay has been pointed out to him in advance. If the contract is based on a cost estimate of the person entitled to exercise the profession, its correctness shall be deemed guaranteed unless the contrary is expressly stated.
(7) Remedy of defects: Item 7 is supplemented If the person entitled to exercise the profession is obliged to improve his services or to make up for what is missing in accordance with § 932 ABGB, he shall fulfill this obligation at the place where the item was handed over. If it is expedient for the consumer to receive the works and documents from the person entitled to exercise the profession, the latter may send them at his own risk and expense.
(8) Jurisdiction: Instead of item 15 para 3: If the consumer has his domicile or habitual residence in Austria or if he is employed in Austria, only the jurisdiction of a court in whose district the domicile, habitual residence or place of employment is located may be established for an action against him pursuant to §§ 88, 89, 93 para 2 and 104 para 1 JN.
(9) Contracts for recurring services (a) Contracts by which the person entitled to exercise the profession undertakes to perform work and the consumer undertakes to make repeated monetary payments and which have been concluded for an indefinite period or for a period exceeding one year may be terminated by the consumer with two months’ notice at the end of the first year, and thereafter at the end of each six-month period. (b) If the entirety of the services is an indivisible service in terms of its nature, the scope and price of which are already determined when the contract is concluded, the first termination date may be up to the expiry of the

GENERAL BUSINESS CONDITIONS for Management Consultants

1. general principles / scope of application

1.1 These General Terms and Conditions shall apply exclusively to all legal transactions between the Client and the Contractor (Management Consultant). The version valid at the time of the conclusion of the contract shall apply in each case.

1.2 These General Terms and Conditions shall also apply to all future contractual relationships, thus even if not expressly referred to in supplementary contracts.

1.3 Any general terms and conditions of business of the Principal to the contrary shall be invalid unless expressly acknowledged in writing by the Agent (Management Consultant).

1.4 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 that comes as close as possible to its meaning and economic purpose.

2. scope of the consulting assignment / deputization

2.1 The scope of a specific consulting assignment shall be contractually agreed in each individual case.

2.2 The Agent (Management Consultant) 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 (Management Consultant) itself. There is no direct contractual relationship of any kind between the third party and the client.

2.3 The Principal undertakes not to enter into any business relationship whatsoever with persons or companies used by the Agent (Management Consultant) for the performance of its contractual obligations during or until 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 (Management Consultant).

3. duty of the customer to provide information / declaration of completeness

3.1 The Client shall ensure that the organizational framework conditions for the performance of the consulting assignment at its place of business permit work that is as undisturbed as possible and conducive to the rapid progress of the consulting process.

3.2 The Principal shall also inform the Agent (Management Consultant) comprehensively about previously performed and/or ongoing consultations – also in other areas of expertise.

3.3 The Principal shall ensure that the Agent (Management Consultant) is provided with all documents necessary for the fulfillment and execution of the consulting assignment in a timely manner, even without the Agent’s special request, and that the Agent is informed of all processes and circumstances that are of importance for the execution of the consulting assignment. This also applies to all documents, processes and circumstances that only become known during the consultant’s work.

3.4 The Client shall ensure that its employees and the employee representation (works council) provided for by law and established, if any, are informed of the Contractor’s (Management Consultant’s) activities even before they commence.

4. safeguarding independence

4.1 The contracting parties undertake to be loyal to each other.

4.2 The contracting parties mutually undertake to take all precautions suitable to prevent the independence of the commissioned third parties and employees of the Contractor (Management Consultant) from being jeopardized. This applies in particular to offers made by the Client for employment or the acceptance of orders on its own account.

5. reporting / reporting obligation

5.1 The Agent (Management Consultant) undertakes to report to the Principal on its work, that of its employees and, if applicable, that of commissioned third parties in accordance with the progress of the work.

5.2 The Client shall receive 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.

5.3 The Contractor (Management Consultant) shall be free from instructions in the production of the agreed work and shall act at its own discretion and on its own responsibility. He is not bound to any particular place of work or working hours.

6. protection of intellectual property

6.1 The copyrights to the works created by the Agent (Management Consultant) and its employees and commissioned third parties (in particular offers, reports, analyses, expert opinions, organizational plans, programs, performance descriptions, drafts, calculations, drawings, data carriers, etc.) shall remain with the Agent (Management Consultant). 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 (Management Consultant). Under no circumstances shall an unauthorized reproduction/dissemination of the work give rise to any liability on the part of the contractor (management consultant) – in particular, for example, for the correctness of the work – vis-à-vis third parties.

6.2 The Client’s violation of these provisions shall entitle the Contractor (Management Consultant) to immediately terminate the contractual relationship prematurely and to assert other statutory claims, in particular for injunctive relief and/or damages.

7. warranty

7.1 The Agent (Management Consultant) shall be entitled and obligated, without regard to fault, to correct any inaccuracies and defects in its performance that become known. He shall inform the customer thereof without delay.

7.2 This claim of the Client shall expire after six months after the respective service has been rendered.

8. liability / compensation

8.1 The Agent (Management Consultant) shall be liable to the Principal for damages – except for personal injuries – only in case of gross negligence (intent or gross negligence). This shall also apply mutatis mutandis to damage caused by third parties engaged by the Contractor.

8.2 Claims for damages by the Client may 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 Customer shall in each case furnish proof that the damage is attributable to fault on the part of the Contractor.

8.4 If the Agent (Management Consultant) performs the work with the assistance of third parties and warranty and/or liability claims arise against such third parties in this context, the Agent (Management Consultant) shall assign such claims to the Principal. In this case, the client will give priority to these third parties.

9. secrecy / data protection

9.1 The Contractor (Management Consultant) undertakes to maintain absolute silence about all business matters coming to its knowledge, in particular business and trade secrets as well as any information it receives about the nature, scope of operation and practical activities of the Client.

9.2 Furthermore, the Agent (Management Consultant) undertakes to maintain secrecy vis-à-vis third parties regarding the entire content of the Work as well as all information and circumstances received in connection with the creation of the Work, in particular also regarding the data of clients of the Principal.

9.3 The Contractor (Management Consultant) shall be released from the duty of confidentiality with respect to any assistants and substitutes it uses. However, he must transfer the duty of confidentiality to them in full and is liable for their breach of the duty of confidentiality as for his own breach.

9.4 The duty of confidentiality shall extend indefinitely beyond the end of this contractual relationship. Exceptions exist in the case of legally required statements.

9.5 The Contractor (Management Consultant) shall be entitled to process personal data entrusted to it within the scope of the purpose of the contractual relationship. The Customer shall warrant 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.

10. fee

10.1 Upon completion of the agreed work, the Agent (Management Consultant) shall receive a fee in accordance with the agreement between the Principal and the Agent (Management Consultant). The Contractor (Management Consultant) shall be entitled to issue interim invoices in accordance with the progress of the work and to demand payment on account in accordance with the respective progress. The fee shall be due in each case upon invoicing by the Contractor.

10.2 The Contractor (Management Consultant) shall in each case 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 Principal against invoicing by the Contractor (Management Consultant).

10.4 If the agreed work is not performed for reasons on the part of the Principal or due to a justified premature termination of the contractual relationship by the Agent (Management Consultant), the Agent (Management Consultant) shall retain the right to payment of the entire agreed fee less any expenses saved. In the event that an hourly fee is agreed upon, the fee shall be paid for that number of hours that could have been expected for the entire work agreed upon, 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.

10.5 In the event of non-payment of interim invoices, the Contractor (Management Consultant) shall be released from its obligation to provide further services. However, this shall not affect the assertion of further claims resulting from non-payment.

11. electronic invoicing

11.1 The Agent (Management Consultant) shall be entitled to send invoices to the Principal also in electronic form. The Client expressly agrees to the sending of invoices in electronic form by the Contractor (Management Consultant).

12. duration of the contract

12.1 This Agreement shall generally end upon completion of the Project.

12.2 Notwithstanding the foregoing, the contract may be terminated by either party at any time for good cause without notice. In particular, good cause shall be deemed to be,

– 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 no insolvency proceedings have been opened and the contractual partner does not make advance payments at the request of the Contractor or does not 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.

13. final provisions

13.1 The contracting parties confirm that they have provided all information in the contract conscientiously and truthfully and undertake to notify each other immediately of any changes.

13.2 Amendments to the contract and these GTC must be made in writing; likewise, any waiver of this formal requirement. There are no verbal ancillary agreements.

13.3 This Agreement shall be governed by Austrian substantive law, excluding the conflict of law rules of private international law. The place of performance shall be the place of the Contractor’s (Management Consultant’s) professional establishment. The court at the place of business of the contractor (business consultant) is responsible 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 case of disputes arising from this Agreement, which cannot be settled by mutual agreement, the Contracting Parties mutually agree to involve registered mediators (ZivMediatG) specializing in business mediation from the list of the Ministry of Justice for the out-of-court settlement of the conflict. If no agreement can 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.

(2) In the event that mediation does not take place or is terminated, Austrian law shall apply in any court proceedings that may be instituted. All necessary expenses incurred as a result of prior mediation, in particular also those for a legal advisor, may be claimed as “pre-litigation costs” in court or arbitration proceedings as agreed.