1. General Principles / Scope of Validity
1.1 These Terms and Conditions (“T&Cs”) apply for all legal transactions between the client and MODL CONSULTING Steuerberatung GmbH (hereinafter “MODL CONSULTING”). The version valid at the time of the conclusion of the contract is decisive in each case.
1.2 These Terms and Conditions also apply to all future contractual relationships, even if MODL CONSULTING does not explicitly make reference to this in a quote.
1.3 Conflicting terms and conditions of the client do not apply, unless they are expressly accepted by MODL CONSULTING in writing.
1.4 In the event that individual provisions of these Terms and Conditions are or become ineffective, this shall not affect the validity of the remaining provisions and the contracts concluded on their basis. The ineffective provision must be replaced by an effective provision that comes closest to the intention and economic purpose of the ineffective provision.
1.5 Changes to these T&Cs must be made in writing. Verbal ancillary agreements and declarations will only be valid if MODL CONSULTING confirms them in writing.
2. Scope and Execution of the Consulting Assignment / Representation
2.1 The scope of a specific consulting assignment will be agreed on a case-by-case basis and based on the written quote or the order confirmation from MODL CONSULTING.
2.2 The contract will enter into force on acceptance of the offer submitted by MODL CONSULTING or on tacit acceptance of the order confirmation letter from MODL CONSULTING.
2.3 MODL CONSULTING is entitled to have all or part of the assigned tasks performed by partners or qualified third parties. Payment to third parties will be made exclusively by MODL CONSULTING itself. No direct contractual relationship of any kind will be formed between the third party and the client.
2.4 The client undertakes not to poach any employees of MODL CONSULTING entrusted with the performance of the contract during the term of the contract or for a further six months after termination of the consulting service.
2.5 MODL CONSULTING will be responsible for the provision of the consulting services specified in the quote or in the order confirmation, but not for any economic success.
3. Client’s Obligation of Disclosure / Declaration of Completeness
3.1 If the agreed services are provided on the premises of the client, the necessary infrastructure will be made available free of charge and the client will ensure that when the consulting assignment is performed at its place of business, the organisational conditions enable work to be undisturbed as far as possible and conducive to the swift progression of the consulting process.
3.2 The client will also provide MODL CONSULTING with comprehensive information about previous and/or ongoing consultations related to the services to be provided.
3.3 The client will ensure that all documents necessary for the fulfilment and execution of the consultancy contract are submitted promptly to MODL CONSULTING without having to be specifically requested, and that MODL CONSULTING is informed of all processes and circumstances that are significant for the execution of the consulting assignment. This also applies to all documents, processes and circumstances which only become known to the client during the consultant’s activity.
3.4 MODL CONSULTING is entitled to consider the information provided and the documents submitted by the client as correct and complete. MODL CONSULTING is not obligated to determine any inaccuracies unless expressly agreed otherwise.
3.5 The client will ensure that all decisions that are necessary for the performance of the consulting services are made promptly and that any consents are obtained (e.g. from employees, group management, supervisory board, works council).
3.6 If the client breaches its obligations to cooperate, or other circumstances beyond the control of MODL CONSULTING hinder the performance of the consulting service, the agreed deadlines will be postponed. MODL CONSULTING may invoice the client for any additional costs.
4. Protection of intellectual property
4.1 All works created by MODL CONSULTING, its employees and commissioned third parties (in particular offers, reports, analyses, expert opinions, organisational plans, programmes, service descriptions, drafts, calculations, drawings, data media, etc.) are the intellectual property of MODL CONSULTING.
4.2 Documents provided may only be used by the client for its own business purposes during and after termination of the contractual relationship. The client is prohibited from making any modification to reports, analyses, statements, expert opinions, etc. of MODL CONSULTING.
4.3 In this respect the client is not entitled to reproduce and/or distribute the work(s) or documents or to pass it/them on to third parties in whole or in part without the express written consent of MODL CONSULTING. Parties involved in the handling of the specific case of damage or loss (in particular the policyholder, broker, insurers involved, reinsurers) are not considered third parties as defined by this provision.
4.4 In the event of a breach of these provisions by the client, MODL CONSULTING will be released from all liability for any damage resulting therefrom.
5. Liability / Compensation
5.1 Except for personal injury, MODL CONSULTING is only liable to the customer for damages in case of gross fault (intent or gross negligence). This also applies to damages caused by third parties engaged by the contractor.
5.2 MODL CONSULTING will only be liable to the extent agreed below for the final report and in no way for interim reports, including emails and other communication exchanged during the contractual relationship.
5.3 The liability of MODL CONSULTING is limited in amount to the contract amount, but not more than ten times the minimum insurance sum of the professional liability insurance in accordance with Section 11 of the currently applicable version of the Wirtschaftstreuhandberufsgesetz (WTBG) [Austrian Professional Accountants and Tax Advisors’ Act].
5.4 The client may only assert claims for compensation in court within six months of the client becoming aware of the loss or damage and the damaging party, and at the latest within three years of the event giving rise to the claim.
5.5 The client must prove that the damage is the result of a fault of the contractor.
5.6 If MODL CONSULTING performs the work with the help of third parties and notifies the client thereof, any warranty and/or liability claims arising against these third parties shall be deemed assigned to the client.
5.7 Any liability of MODL CONSULTING in respect of persons other than the client is expressly excluded (see also point 4). If, in exceptional cases, MODL CONSULTING is liable to third parties, the above-mentioned limitations of liability also apply to third parties. In any case of assertion of claims for damages by a third party against MODL CONSULTING, the client shall indemnify MODL CONSULTING and hold it harmless.
6. Confidentiality / Data Protection
6.1 MODL CONSULTING, its employees and any partners it engages undertake to maintain complete confidentiality regarding all business matters that become known to it/them in connection with the activity for the client.
6.2 MODL CONSULTING may only disclose reports, expert opinions or other works relating to the activity to third parties with the consent of the client.
6.3 The obligation of confidentiality also extends indefinitely beyond the end of this contractual relationship. Exceptions exist in the case of legal obligations of declaration or an express release from the obligation of confidentiality by the client.
6.4 MODL CONSULTING is entitled to process personal data entrusted to it within the scope of the purpose of the contractual relationship. The client warrants to the contractor that all measures necessary therefor have been taken, in particular those defined by the Data Protection Act, such as declarations of consent of the persons concerned.
7.1 Upon completion of the agreed work, MODL CONSULTING will receive a fee in accordance with the agreement between the client and MODL CONSULTING.
7.2 The amount of the fee will depend on the type and scope of the agreed services. In the absence of an express agreement, a reasonable fee will be due. MODL CONSULTING is entitled to submit interim invoices in accordance with the work progress and to request payments on account corresponding to the respective progress.
7.3 The fee will be due in each case on submission of an invoice by MODL CONSULTING.
7.4 Any incidental cash expenses, fees, travel expenses, etc. will be reimbursed by the client in addition, on submission of an invoice by MODL CONSULTING.
8. Term of the contract
8.1 In principle this contract will end on completion of the project.
8.2 Regardless of this, the contract can be dissolved at any time for material reason by either party without notice. The following in particular are to be regarded as material reason: – if a contracting party breaches essential contractual obligations or – if a contractual partner is in default of payment after the opening of insolvency proceedings. – if there are legitimate concerns about the creditworthiness of a contracting party against which no insolvency proceedings have been initiated, and if the latter does not, at the contractor’s request, make any advance payments or provide adequate security for the contractor’s service, and the poor financial circumstances were unknown to the other contracting party upon conclusion of the contract.
8.3 The client will pay MODL CONSULTING for the services provided and expenses incurred up to the expiry of the contractual relationship.
9. Final provisions
9.1 The client is not entitled to transfer rights and obligations arising from this contract to third parties without the prior written consent of MODL CONSULTING.
9.2 Place of fulfilment is Linz. For disputes arising from this contract, the agreed court of jurisdiction is the Regional Court of Linz.
9.3 Changes to the contract and these T&Cs must be made in writing; the same applies to any deviation from this form requirement. No verbal ancillary agreements exist.
9.4 Substantive Austrian law applies to this contract to the exclusion of the conflict of laws principles of private international law.