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General Terms & Conditions (T&C) matokeo GmbH
(matokeo Beratungs- und Dienstleistungs GmbH henceforth called the „Agent“)
General Terms and Conditions / Scope
The Agent shall provide the Principal with consulting, services and trade goods in the licensed trades Consulting including Business Organization (“Unternehmensberatung einschließlich Unternehmensorganisation”) and IT (“Dienstleistungen in der automatischen Datenverarbeitung und Informationstechnik”). All present and future legal transactions between the Principal and the Agent shall be subject to these General Terms and Conditions exclusively, unless explicitely agreed otherwise. The version valid at the time the Contract is concluded shall be applicable and is available through the Agents website (www.matokeo.at).
Any conflicting General Terms and Conditions on the part of the Principal shall be invalid even if they have not been explicitly contradicted to by the Agent.
Scope of Assignments
The scope of each particular assignment shall individually be agreed upon by contract.
Validity / Legal Force
Offers on behalf of the Agent shall be valid for 30 days. Prices offered for merchandising goods that are either costed separately or as lump sums are only valid unless a price adjustment has been made by the manufacturer and/or supplier during the validity period of the overall quote.
Any Contract shall become legally binding only through the issuing of an order confirmation by the Agent. Apparent and/or comprehensible errors excepted.
Any Contract shall become legally binding only through written consent by the Agent and oblige only to the scope of minutes agreed upon and put down in writing.
Possible statements on behalf of the Agent’s employees or contractors shall only become legally binding if explicitly acknowledged in written by an Agent’s authorized representative.
Principal’s Obligation to Provide Information / Declaration of Completeness
The Principal shall ensure that during the performance of the consulting assignment, organizational conditions in the Principal’s place of business allow the consulting process to proceed in a timely and undisturbed manner.
The Principal shall also inform the Agent in detail about previously conducted and/or currently active consulting projects, including those in other areas of competency.
The Principal shall, in a timely manner and without special request on the part of the Agent, provide the Agent with all documents necessary to fulfill and perform the consulting assignment and shall inform the Agent of all activities and conditions pertinent to the performance of the consulting assignment. This includes all documents, activities and conditions that become known or available during the performance of the consulting assignment.
The Principal shall provide the Agent with all resources necessary for the performance and duration of the consulting assignment free of charge.
The Principal shall name and provide an authorized representative to the Agent for the duration of the assignment whose statements shall be legally binding for the Principal.
The Principal shall ensure that all employees as well as any employee representation (works council) provided by law, if established, are informed of the Agent’s consulting activities prior to the commencement of the assignment.
Deadlines / Scheduled Delivery Dates
The Agent shall strive to meet all deadlines and scheduled delivery dates agreed upon. However meeting those dates depends on the Principal’s timely provision of all information necessary to fulfill and perform the consulting assignment. The Agent shall not be liable for delays in delivery and cost increase due to wrong, incomplete or subsequent alterations of information, the Principal shall bear the full risk. The Agent shall always be entitled to partial deliveries. If the Agent and/or any of his subcontractors cannot perform the consulting assignment due to strikes, force of nature, war or any other cases of force majeur all deadlines and scheduled delivery dates shall be adjusted accordingly. Expenses incurred due to force majeur or services outside the agreed upon area of operation shall be charged separately. Terms of delivery are EXW, Incoterms 2010.
Remuneration / Payment Conditions
The Agent shall receive remuneration agreed upon in advance between the Agent and the Principal. The Agent shall be entitled to render intermediate accounts and to demand payment on account as required by the progress of the work. Remuneration shall be due and payable immediately after rendering accounts by the Agent.
The Agent shall render accounts which entitle to deduct input tax and contain all elements required by law.
The Agent shall be entitled to transmit invoices electronically. The Principal agrees explicitly to accept invoices transmitted electronically by the Agent.
Remuneration shall be charged based on the time-referenced work accomplished and the corresponding hourly rates agreed upon. Overtime worked will have to be charged on weekdays, i.e. Monday to Friday 0600-0800 hrs and 1700-2000 hrs, and on Saturdays 0800-1200 hrs with a factor of 1.5, on Sundays, public holidays, weekdays 2000-0600 hrs and Saturdays 1200-2400 and 0000-0800 hrs with a factor of 2.0. December 24th and 31st are considered as public holidays.
In particular cases lump sums can individually be agreed upon. All prices are stated in Euros without VAT.
The grace period for payment of services shall be 14 days from the date of invoice, net free of charges. Trade goods have to be paid in advance.
In the event that intermediate invoices are not paid, the Agent shall be released from the Agent’s commitment to provide further services.
Interests shall be charged by the Agent at the rate of EURIBOR Monthly Average plus 10% per annum. Chased payments shall be charged by the Agent at 10,- Euros per reminder and shall include the appropriate debt collection charges as charged by the collection agency.
This shall not apply to any further claims resulting from default of payment.
All services and deliveries shall be subject to the unpaid Agent’s right of lien and shall remain the Agent’s sole property until paid in full.
In the event that the work agreed upon is not completed due to reasons on the part of the Principal or due to a premature termination of contract by the Agent, the Agent shall be entitled to claim payment in full of the remuneration agreed upon in advance, less expenses not incurred. In the event that an hourly fee had been agreed upon, the Principal shall pay for the number of hours expected to be required for the entire contracted assignment, less expenses not incurred. Expenses not incurred shall be calculated as a lump sum consisting of 30% of the fee required for those services that the Agent did not perform by the date of termination of the agreement, the Principal shall be liable to pay 70% of the fee.
All remuneration agreed upon shall be of stable value. Appraisement shall be based upon the index of consumer price 2005 (ICP ’05), monthly published by Statistik Austria, or any index best corresponding to the ICP ’05. Calculation of the appraisement shall be based upon the month of the corresponding contractual agreement’s making. Downward fluctuations of index values shall be unremarkable. Upward fluctuations of index values up to 5 percentage points shall be unremarkable. The first change in value exceeding this scope shall be the base for appraisement of remuneration including the corresponding month as well as for the respective new scope.
Any cash expenditures, expenses, travel expenses, etc. shall be reimbursed to the Agent by the Principal separately, upon submission of the appropriate receipts.
The contracting parties shall be obligated to maintain complete confidentiality concerning all business matters made known to the contracting parties in the course of services performed, especially trade and company secrets and any other information concerning type and/or scope of business and/or practical activities of the Principal.
Furthermore, the contracting parties shall be obligated to maintain complete confidentiality towards third parties not bound to secrecy by occupational law and towards any direct competitors and their employees concerning the content of the work completed, as well as any information and conditions that contributed to the completion of the work and any contractual agreements.
The Agent shall not be obligated to maintain confidentiality towards any person working for the Agent or representatives of the Agent.
This obligation shall remain valid for 6 months after the completion of the assignment.
Non-Competition Clause / Non-Collaboration Clause
During the validity of this Contract and for a period of three years after termination thereof, the Principal shall agree not to enter into any kind of business transactions with persons or organizations the Agent employs to perform the Agent’s contractual duties. The Principal shall not employ said persons or organizations to render consulting services the same or similar to those offered by the Agent. In particular, the Principal shall not poach the Agent’s employees or contractors directly or through third parties.
In case of infringing these regulations the Principal shall be obliged to a contractual penalty of twelve monthly gross salaries of the Agent’s concerned employee, at least being equivalent to level ST2/experienced of the Austrian IT-industries collective labor agreement salary (“Kollektivvertragsgehalt für Angestellte in der elektronischen Datenverarbeitung und Informationstechnik, spezielle Tätigkeiten ST2, Erfahrungsstufe”).
The Agent shall be entitled to use any personal data entrusted to the Agent for the purposes of the services performed. The Agent shall guarantee the Principal that all necessary measures will be taken, especially those regarding data protection laws, e.g. that declarations of consent are obtained from the persons involved.
The Agent shall not be responsible for verifying the permissibility of any use of personal data on behalf or mandate of the Principle. The Principle shall be liable for any provisioning and processing of personal data. The Principle shall save the Agent harmless against all raised claims from third parties, i.e. authorities, regarding violations of data protection laws.
The Agent shall take all reasonable measures to protect the Principle’s data and information stored at the Agent’s sites against unauthorized third party’s access. The Agent shall not be liable for any illegal access to any data or information by third parties through illegal means.
The Agent shall be entitled to provide all data regarding this assignment to employees and contractors for the purposes of the services performed.
Protection of Intellectual Property
The Agent shall retain all copyrights to any work done by the Agent and/or by persons working for the Agent and/or by third parties employed by the Agent (including but not limited to tenders, reports, analyses, expert opinions, organization charts, programs, performance descriptions, drafts, calculations, drawings, data media, etc.). During the contract period and after termination thereof, the Principal may use these materials exclusively for the purposes and period of the assignment.
Therefore, the Principal shall not be entitled to copy or distribute these materials without the explicit consent of the Agent. Under no condition shall the Agent be liable for any unauthorized duplication and distribution or any other issues accrued thereupon against third parties.
Any violation of this provision by the Principal shall entitle the Agent to prematurely terminate the Contract and to enforce other legal claims, in particular for restraint and/or damages.
Liability / Damages
The Agent shall guarantee that the services or goods provided fit the Principal’s specifications for the purpose which they have specifically been required for. All relevant legal regulations shall be applicable provided that the Agent shall be entitled to be free to choose the means and mode of standing behind any guarantees (“Gewährleistungsbehelf frei wählbar”) and the Principal always provides evidence that the services or goods were defective at delivery.
The Agent shall be liable to the Principal for damages - with the exception of personal injury – only to the extent that these are the result of serious fault (intention or gross negligence) of up to 5% of payments rendered due to the respective service during the respective calendar year, however not exceeding a total amount of EUR 10.000,-. Correspondingly, this also applies to damages resulting from third parties employed by the Agent.
Any claim for damages on the part of the Principal may only be enforced by law within six months after those entitled to assert a claim have gained knowledge of the damage and the liable party, but not later than three years after the incident upon which the claim is based.
The Principal shall furnish evidence of the Agent’s fault.
If the Agent performs the required services with the help of third parties, any warranty claims and claims for damages which arise against the third party shall be passed on to the Principal. In this case, the Principal shall primarily refer to the third party. Recourses receivable according to §12 of the Austrian directive on liability for defective products (“§12 Österr. Produkthaftungsgesetz) shall be excluded, unless the Principle provides evidence that these are due to the responsibility or at least gross negligence of the Agent.
Cancellation of Orders / Returning of Goods
Cancellation of placed orders for goods shall only be accepted if accepted by the respective original manufacturer or supplier. Cancellations due to reasons on the part of the Principal shall be subjected to a corresponding cancellation-fee. All goods shall be returned in their original unopened packaging. Terms for delivery for returns: DDP, Incoterms 2010. Customer-specific goods or licenses may not be returned.
Participation in Events
Participation on events, e.g. workshops, education, coaching, mediation, etc., shall be at the participants own risk and responsibility. No medical treatment or psychotherapy of any kind shall be provided. Through an event commmunicative techniques, means of self-management as well as improvements of individual learning processes may be gained. All participants shall be liable for self-inflicted damages. The Agent shall be entitled to exclude any participant at his own discretion and without further justification to ensure learning success and safety for other participants. Participants shall not be entitled to refunds of participation fees or any other incurred expenses in case of exclusion or self-chosen premature termination.
The Agent shall be entitled to cancel, postpone or change any event, speaker or venue. Paid participation fees shall be refunded in cases where the cancelled and postponed events do not occur. The Agent shall not be liable for any further expenses, e.g. travel expenses, loss of income. The Agent shall not be liable for any specific course of action or specific content of any event.
List of References
The Agent shall be entitled to mention the Principal in any form of advertising, e.g. in the list of references.
Settlement of Disputes
Any claim, dispute or controversy between the Principal and the Agent shall be resolved exclusively and finally binding either by the relevant commercial court in Vienna (“Handelsgericht Wien”), mediation administered by a mediator officially listed by the Austrian Department of Justice or arbitration administered according the rules set forth by the International Arbitral Court of the Austrian Chamber of Commerce (“Internationales Schiedsgericht der Wirtschaftskammer Österreich, Wiener Regeln”). Mediations and/or arbitrations shall be administered in Vienna in German language.
Both contractual parties shall be entitled to terminate the mediation at any time, or to proceed to binding arbitration at any time.
Any claim on behalf of the Principal shall be shall be brought to the Agent’s notice in advance, whereupon the Agent shall notify the Principal within 14 days if the dispute shall be resolved by court, mediation or arbitration. On omission of notification by the Agent the dispute shall be resolved by binding arbitration.
The Agent shall be entitled to subcontract, in whole or in part, the services for which the Agent is responsible to third parties, whereas these Terms and Conditions shall also apply to said third parties. Payment of said third parties shall be effected exclusively by the Agent. No contractual relationship of any kind shall exist between the Principal and said third party.
If any provision of these General Terms and Conditions is or becomes invalid, either in part or in full, or impracticable, the other provisions and any contracts concluded pursuant to these provisions shall not be affected thereby. The invalid or impracticable provision shall be replaced by a provision which best corresponds to the intention and economic purpose of the invalid or impracticable provision. The same shall also apply in the event of any unintended and/or obvious errors and omissions.
Modifications of and amendments to any contract or these General Terms and
Conditions shall be made in writing. This shall also apply to a waiver of this requirement of written form. Parol evidence shall not exist.
In case of contradiction between the German and the English version of these General Terms and Conditions the German version takes precendence.
This Contract is governed by the substantive law of the Republic of Austria excluding the conflict-of-law rules of international private law and Uniform Law on the International Sale of Goods (CISG, “UN-Kaufrecht”). Place of fulfillment is the registered business establishment of the Agent. Place of fulfillment is the registered office of the Agent.