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(MARCH 26, 2020)

1. General principles / scope

  • These general terms and conditions apply exclusively to all legal transactions between the client (AG) and the contractor (AN, IMARK). The version valid at the time the contract is concluded is decisive.
  • These general terms and conditions also apply to all future contractual relationships, even if they are not expressly referred to in additional contracts.
  • Conflicting general terms and conditions of the client are invalid unless they are expressly recognized in writing by IMARK.
  • For 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 their basis. The ineffective provision is to be replaced by an effective provision that comes closest in meaning and economic purpose.

2. Scope of the consulting contract/representation

  • The scope of a specific consulting assignment is contractually agreed.
  • IMARK is entitled to have the tasks incumbent on it performed in whole or in part by third parties. The payment of the third party is made exclusively by IMARK. This cooperation of specialized third parties is to be agreed with the AG in advance. There is no direct contractual relationship whatsoever between the third party and the AG.

3. Client’s obligation to provide information / declaration of completeness

  • The client ensures that the organizational framework conditions allow the consulting process to be carried out as undisturbed as possible at its place of business, which is conducive to the rapid progress of the consulting process.
  • The client ensures that IMARK is provided with all documents necessary for the fulfillment and execution of the consulting contract in a timely manner, even without their specific request, and that they are informed of all processes and circumstances that are necessary for the Execution of the consulting assignment are important. This also applies to all documents, processes and circumstances that only become known during the consultant’s work.
  • The client ensures that its employees and the employee representatives (works council) provided for by law and set up if necessary are informed of the scope and content of the project before IMARK begins its work.

4. Securing Independence

  • Within the period from the placing of the order to 12 months after the conclusion of the order, the client will not hire IMARK employees or employ them in any other way with itself or a dependent company. If the AG violates this, a lump-sum compensation in the amount of one year’s salary of the employee is to be paid to IMARK.

5. Reporting / Duty to Report

  • IMARK undertakes to report to the client on the progress of their work, that of their employees and, if necessary, also that of commissioned third parties.
  • IMARK endeavors to meet the agreed deadlines for fulfillment (completion) as precisely as possible.
  • The aspired performance dates can only be met if the client makes all necessary work and documents available in full by the dates specified by IMARK and meets its obligation to cooperate to the required extent.
  • IMARK commits to the careful execution of contractually accepted services in accordance with the agreements made in accordance with the principles of proper professional practice.
  • Delivery delays and cost increases caused by incorrect, incomplete or subsequently changed details and information or documents not being made available or other causes for which IMARK is not responsible cannot lead to the Contractor being in default. The client bears the resulting additional costs.

6. Intellectual property protection

  • The copyrights to the works created by IMARK and its employees and commissioned third parties (in particular offers, reports, analyses, expert opinions, organization charts, programs, service descriptions, drafts, calculations, drawings, data carriers, etc.) remain with IMARK. They may only be used by the client during and after the end of the contractual relationship for the purposes covered by the contract. In this respect, the AG is not entitled to reproduce and/or distribute the work(s) without the express consent of IMARK. In particular, the transfer of professional statements of any kind to third parties, whether paid or not, requires the written consent of IMARK. Under no circumstances will IMARK be liable to third parties for unauthorized duplication/distribution of the work, in particular for the correctness of the work.
  • The customer’s violation of these provisions entitles IMARK to immediately terminate the contractual relationship prematurely and to assert other legal claims, in particular for injunctive relief and/or damages.
  • With regard to the fact that the consulting services provided are the intellectual property of IMARK, the right to use the same applies exclusively for the client’s own purposes even after payment of the fee. Any such disclosure, including in the course of the company’s dissolution or bankruptcy, but also short-term use for reproduction purposes, may result in claims for damages.

7. Warranty

  • The client is entitled to have defects rectified free of charge if IMARK is responsible for them.
  • This claim of the client expires six months after the respective service has been rendered.

8. Liability / Compensation

  • IMARK is liable to the AG for damages – with the exception of personal injury – only in the event of gross negligence (intent or gross negligence). This also applies mutatis mutandis to damage that can be traced back to third parties called in by the Contractor.
  • Claims for damages by the customer can only be asserted in court within six months of becoming aware of the damage and the damaging party, but at the latest within three years of the event giving rise to the claim.
  • In each case, the AG must provide evidence that the damage can be traced back to the fault of the AN.
  • If IMARK performs the work with the help of third parties and warranty and/or liability claims arise against these third parties in this context, IMARK assigns these claims to the client. In this case, the client will primarily rely on these third parties.

9. Confidentiality / Data Protection

  • IMARK undertakes to maintain strict secrecy about all business matters that come to its knowledge, in particular business and trade secrets, as well as any information that it receives about the type, scope of operations and practical activities of the client.
  • IMARK may only hand over reports, expert opinions and other written statements about the results of its activities to third parties with the consent of the client.
  • Furthermore, IMARK undertakes to maintain secrecy towards third parties about the entire content of the work and all information and circumstances that it received in connection with the creation of the work, in particular also about the data of clients of the AG maintain.
  • IMARK is released from the duty of confidentiality towards any assistants and representatives that it uses. However, it has to transfer the confidentiality obligation to them completely and is liable for their violation of the confidentiality obligation as for a violation of its own.
  • The confidentiality obligation extends beyond the end of this contractual relationship. Exceptions exist in the case of statutory obligations to provide information.
  • IMARK is entitled to process personal data entrusted to it within the scope of the purpose of the contractual relationship. The AG guarantees the AN that all necessary measures, in particular those in the sense of the data protection law, such as declarations of consent of the persons concerned, have been taken.

10. Fee

  • After completion of the agreed work, IMARK will receive a fee in accordance with the agreement between the client and IMARK. IMARK is entitled to issue interim accounts according to the progress of the work and to request down payments corresponding to the respective progress, usually in the form of a start invoice at the beginning and a final invoice after completion of the work, each at 50% of the total amount. The fee is due upon invoicing by the Contractor.
  • IMARK will issue an invoice with all legally required features that entitles you to deduct input tax.
  • Any cash outlays, expenses, travel expenses, etc. are to be additionally reimbursed by the client against IMARK accounting.
  • The fee rates for services that are to be billed according to time are based on an eight-hour day with five working days per week. Travel time only counts as 50% working time. Billing takes place monthly on the basis of the expenses actually incurred.
  • All invoices are payable without deduction within 14 days of the invoice date.
  • The client and IMARK can only terminate the contract before the agreed service is provided for good cause. If the agreed work is not carried out for reasons on the part of the client or due to a justified premature termination of the contractual relationship by IMARK, IMARK retains the right to compensation for the proportionate work.
  • If the AG is responsible for the premature termination of the contractual relationship, IMARK will receive a flat-rate compensation of 25% of the agreed remuneration for the services not yet performed in addition to the remuneration mentioned under 10.1, subject to further claims by IMARK.
  • In the event of non-payment of interim bills, IMARK is released from its obligation to provide further services. However, this does not affect the assertion of further claims resulting from non-payment.

11. Duration of the contract

  • In principle, this contract ends with the completion of the project.
  • 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, in particular,
  • if a contractual partner violates essential contractual obligations or
  • if a contractual partner defaults on payment after the opening of insolvency proceedings.
  • if there are legitimate concerns about the creditworthiness of a contracting party for whom no insolvency proceedings have been opened and the contracting party does not make any advance payments at the request of the contractor or provide suitable security before the contractor performs the contract and the poor financial situation was not known to the other contracting party at the time the contract was concluded.

12. Final Provisions

  • The contracting parties confirm that they have provided all information in the contract conscientiously and truthfully and undertake to notify each other of any changes immediately.
  • Changes to the contract and these GTC must be in writing; as well as a departure from this formal requirement. Verbal collateral agreements do not exist.
  • Substantive Austrian law is applicable to this contract, excluding the reference norms of private international law. The place of fulfillment is the place of business establishment of IMARK. The court at the place of business of IMARK has jurisdiction for disputes.

Mediation clause

(1) In the event of disputes arising from this contract that cannot be settled amicably, the contracting parties mutually agree to consult registered mediators (ZivMediatG) with a focus on business mediation from the list of the Ministry of Justice for the out-of-court settlement of the conflict. If no agreement can be reached on the selection of the business mediators or on the content, legal steps 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 aborted, Austrian law applies to any court proceedings that may have been initiated. All necessary expenses incurred as a result of previous mediation, in particular those for legal advisors consulted, can be claimed as “pre-trial costs” in court or arbitration proceedings as agreed.