General Terms & Conditions
1. General – Scope of application
1.1 The General Terms and Conditions (hereinafter referred to as "GTC") of THI TECHHOUSE GmbH, FN 184624 g (hereinafter referred to as "TECHHOUSE") in the version valid at the time of delivery of goods and provision of services shall apply to all agreements concluded between TECHHOUSE and customers/clients.
1.2 By submitting an order or concluding a contract, the customer expressly agrees to these GTC. These terms and conditions apply to all future transactions, even without expressed agreement.
1.3 Changes and additions to the GTC as well as verbal agreements that deviate from the content of these GTC are only valid after written consent by TECHHOUSE. Any deviating or supplementary general terms and conditions of business or purchase of the customer shall not be valid, even if they are included or referenced in orders of the customer accepted by TECHHOUSE.
1.4 In the event of any contradictions between the provisions of the agreement concluded with the Customer and these GTC, the provisions of the agreement shall prevail.
1.5 The services cover the areas described in the assignment. TECHHOUSE does not assume any responsibility that the services cover all matters essential for the client. It is the responsibility of the client to determine whether the areas to be covered by TECHHOUSE and the scope of the services are sufficient for his/her purposes.
1.6 The Services shall be based only on such information as is provided to TECHHOUSE by the Client or as is generally available to the public. Unless otherwise expressly stated in the final report, TECHHOUSE shall perform the Services assuming that such information is accurate, complete and not misleading and shall not verify the information for accuracy or in any other manner. Unless otherwise expressly stated in the assignment, the Services are not intended to detect fraud or false, misleading or incomplete information.
1.7 If a schedule is agreed, each of the Parties shall use reasonable efforts to perform its respective obligations in accordance with that schedule. Unless explicitly agreed otherwise in writing, the dates and deadlines contained in a schedule are for planning and project management purposes only and are not binding.
1.8 To the extent that the Services include consideration of Prospective Financial Information ("PFI"), the following shall apply: With respect to PFI, such as, but not limited to, considerations of future profitability and future cash flows, it is the Client's responsibility to carefully review TECHHOUSE's comments and make the Client's own decisions based on the information available to the Client.
1.9 Since events and circumstances often do not occur as expected, differences usually arise between forecast and actual results, which may be material in individual cases. TECHHOUSE therefore takes no responsibility for forecasted results.
1.10 To the extent that the services include operational areas, TECHHOUSE will provide opinions based on its experience in operational matters, but not necessarily based on direct experience in the specific industry or business area of the client or target. Such opinions do not necessarily indicate the optimal operational solution; there may be other equally defensible assessments. The achievable results depend on the exact circumstances, time and concrete implementation of planned operational improvements. TECHHOUSE therefore assumes no responsibility or guarantee for the achievement of possible operational improvements.
1.11 Within the scope of the provision of the services, TECHHOUSE will at most only provide recommendations for action with reference to possible consequences and alternatives. In particular, the services do not include investment decisions or financing decisions. The decision on the setting of actions and omissions is exclusively incumbent on the client. The contracting parties undertake, on the basis of applicable legal provisions, court or official orders or on the basis of relevant regulations under stock exchange law, to disclose part or all of the Confidential Information, to inform the other contracting party (as far as legally possible and practicable) thereof in writing without undue delay and to make all reasonable efforts to keep the scope of the disclosure to a minimum.
1.12 The client acknowledges that TECHHOUSE also provides services for other clients who may be in competition with him or whose interests conflict with his. Unless expressly agreed otherwise, the consulting contract does not prevent or restrict TECHHOUSE from providing services for other clients.
2 CLIENT'S DUTY OF DISCLOSURE AND COOPERATION
2.1 If TECHHOUSE is active on the premises of the client, the client shall create all necessary conditions in the area of his business sphere in due time and free of charge and maintain them for the duration of the service provision. In particular, the client shall provide TECHHOUSE with all material resources - including telephone, internet, fax - which are necessary for the contractual performance of the contract agreed between TECHHOUSE and the client.
2.2 The client will provide TECHHOUSE in due time with all information TECHHOUSE requires for the contractual execution of the contract agreed between TECHHOUSE and the client. The client will inform TECHHOUSE immediately about all events, circumstances and changes known to the client, which are likely to influence the services.
2.3 Upon TECHHOUSE's request, the client shall confirm the correctness and completeness of the information provided by the client.
2.4 The client shall also inform TECHHOUSE comprehensively about previously performed and/or ongoing consultations, also in other fields of expertise.
3.1 If agreed upon in the contract between TECHHOUSE and the client, TECHHOUSE will write a report on the results of the services and make it available to the client.
3.2 In the course of providing the services, TECHHOUSE may provide the client with oral opinions or drafts of reports, letters, lists, calculations or other data. Since these are interim results still to be revised, not the final results of the services, TECHHOUSE assumes no liability in this regard. The final results of the services are only included in a final report, if any.
3.3 The Client agrees to keep confidential all oral and written opinions, drafts and final documents (whether in hard copy or electronic form) provided to the Client in connection with the Services (collectively, the "Reports") and not to use them for any purposes other than those specified in the contract agreed between TECHHOUSE and the Client.
3.4 The reports are intended only for the client and only for use by the client within the framework of the contract concluded between TECHHOUSE and the client and the purposes of the reporting specified therein. Any use for other purposes, publication or disclosure to third parties requires the express written consent of TECHHOUSE. TECHHOUSE will not prohibit such consent on the grounds of unreasonable discretion. Duties of care and liability on the part of TECHHOUSE towards third parties are excluded in any case, i.e. also 4.4 in case of consent by TECHHOUSE to a disclosure to third parties or a change of purpose. TECHHOUSE is entitled to refer to this exclusion of liability also in the reports. As far as there is a legal obligation or official instruction to disclose the report or parts of the reports to a third party, the client will inform TECHHOUSE immediately, he will disclose only the absolutely necessary parts of the reports and will remove beforehand, as far as legally permissible, any reference to TECHHOUSE or companies of the TECHHOUSE network from the reports to be disclosed.
3.5 The Client agrees to fully indemnify and hold harmless TECHHOUSE, the other companies in the TECHHOUSE network, and their partners, employees, and subcontractors from and against any and all liabilities, damages, expenses, and other costs incurred by them in connection with any third-party claims, on any basis whatsoever, arising out of or in connection with the Services.
3.6 The Client shall be entitled to make the Reports available to members of its management, its employees directly involved in the Project and professional advisors, provided that it takes reasonable care to ensure that the person concerned is aware that: (a) the reports are confidential and may not be disclosed to any third party without the express consent of TECHHOUSE; (b) he/she may use the reports only for the purposes of advising the Client with respect to the Project; (c) TECHHOUSE assumes no liability to the Client and no duty of care with respect to any use of the reports; (d) the Client is required to comply with the provisions of the Basic Data Protection Regulation (EU) 2016-679 with respect to personal data. The Client shall be liable for any breach of this confidentiality obligation by such persons as for its own.
4 CONFIDENTIALITY, DATA PROTECTION
4.1 The Parties shall keep Confidential Information confidential. Confidential Information means any information or document received or produced by TECHHOUSE in connection with the Services, but does not include any information that:(a) is or becomes generally available to the public other than as a result of a breach of any obligation under this clause; or (b) is known to TECHHOUSE prior to the commencement of the provision of the Services; or (c) is received from a third party who is not subject to any obligation of confidentiality with respect to the information.
4.2 In particular, TECHHOUSE will not use confidential information for the benefit of other clients. Similarly, TECHHOUSE will not use any information that TECHHOUSE receives in confidence in connection with another assignment for the benefit of the client.
4.3 Subject to item 4.2, as soon as the project is no longer confidential, TECHHOUSE is entitled to quote the name of the client or the name of its parent company or the target object as well as the project as a reference.
4.4 The contracting parties also undertake to secure the confidential information against unauthorized access by third parties by means of appropriate confidentiality measures and to comply with the statutory and contractual provisions on data protection when processing the contractual information. This also includes the current state of the art, adapted technical security measures (Art. 32 DSGVO) and the obligation of employees to confidentiality and compliance with data protection (Art. 28 para. 3 lit. B DSGVO). With regard to personal data provided by the client to TECHHOUSE in connection with the project, the client confirms that the processing of such data in accordance with the provisions of the contract agreed between TECHHOUSE and the client does not constitute a violation of the provisions of the Austrian Data Protection Act and undertakes to indemnify and hold TECHHOUSE and the companies of the TECHHOUSE network harmless in this respect.
5 ELECTRONIC COMMUNICATION
5.1 The client agrees to the electronic transmission of texts, information, data and documents via e-mail, either as text or as file attachments, and is aware of the associated risks, such as loss, mutilation, falsification of the transmitted data, lack of secrecy protection, viruses, etc., among others. Only the version sent by TECHHOUSE to the client is authoritative. TECHHOUSE is not obliged to use encryption systems or electronic signatures. All risks arising from communication by e-mail and any damages or other disadvantages resulting therefrom shall be borne by the client; TECHHOUSE shall not be liable for such risks, damages or other disadvantages.
5.2 If the client transmits information, messages or other data to TECHHOUSE by means of e-mail which are urgent, contain deadlines or dates, the client shall refer to this transmission by telephone as well as additionally transmit this information, messages or other data by fax, if required, or ensure in another way that TECHHOUSE can react in an appropriate manner.
5.3 The contracting parties undertake to take measures to protect the integrity of data; in particular, it is the responsibility of the recipient to check all file attachments with suitable anti-virus software before opening the documents, regardless of whether the files are delivered on data carriers, by e-mail or by other means. Should a virus enter the client's systems due to the data transmission from TECHHOUSE to the client, TECHHOUSE shall not be liable for any damages resulting therefrom.
6 PROTECTION OF INTELLECTUAL PROPERTY
6.1 The copyrights to the works created by TECHHOUSE, its employees and subcontractors, such as in particular working papers, reports, analyses, programs, calculations, correspondence, etc., shall remain with TECHHOUSE. They may be used by the client during and after termination of the contractual relationship exclusively for the purposes covered by the contract agreed between TECHHOUSE and the client. The client is not entitled to reproduce and/or distribute the works created by TECHHOUSE, its employees or subcontractors, in whole or in part, without the express prior written consent of TECHHOUSE.
6.2 Subject to Section 4, TECHHOUSE shall be entitled to use all spreadsheets, databases, systems, techniques, methods, ideas, concepts, information and know-how developed by TECHHOUSE, its employees and subcontractors in the course of the performance of the contract agreed between TECHHOUSE and the Client in any manner TECHHOUSE deems appropriate.
6.3 TECHHOUSE is entitled to keep a copy of all documents or software created by TECHHOUSE, as well as all documents on which the services are based, after termination of the contract agreed between TECHHOUSE and the client, so that TECHHOUSE has professional records of the services. It is TECHHOUSE's practice to destroy such documents after seven years at the earliest.
7.1 The fee for the services is basically calculated as a pure time fee, which is calculated from the time required for the execution of the contract agreed between TECHHOUSE and the client and the respective hourly rate of the employees concerned. The necessary expenditure of time as well as the respective hourly rate depend on the type and complexity of the work to be performed or the required qualification of the employees to be deployed. The assessment of which qualification is required is the sole responsibility of TECHHOUSE. Travel time will be charged at normal hourly rates. The hourly rates will be adjusted at least annually. The statutory value added tax will be charged additionally.
7.2 Any fee estimates by TECHHOUSE are made to the best of TECHHOUSE's knowledge and belief, but are not binding. As soon as it can be estimated that a fee estimate is likely to be exceeded to a considerable extent, TECHHOUSE shall inform the client thereof.
7.3 TECHHOUSE is entitled to issue (interim) bills according to the progress of the services and to demand down payments.
7.4 All bills are due immediately upon receipt. The amount invoiced is payable whether or not the project has been completed. Default interest may be charged for payments made later 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).
7.5 Any objections to an invoice must be raised within 30 days of the invoice date. If objections are raised in due time, all undisputed amounts shall remain payable on the due date.
7.6 Any cash expenses, out-of-pocket expenses, travel expenses, etc. (such as train, bus, airfare, cab and rental car costs, mileage, parking fees, per diems, hotel costs, fax and telephone charges, postage, costs for messenger and courier services, copies, additional insurance premiums for individual orders) will be charged separately.
8 DEFECT REMOVAL
8.1 TECHHOUSE is entitled and obligated to eliminate subsequently emerging material inaccuracies and deficiencies in its final reports or statements and will inform the client thereof without delay. TECHHOUSE is also entitled to inform third parties informed about the original statement about such changes.
8.2 The client is entitled to the removal of inaccuracies free of charge, provided that TECHHOUSE is responsible for them. This claim expires six months after submission of the final report, or if such a report is not submitted, six months after completion of the activity complained about by TECHHOUSE.
9.1 TECHHOUSE is not liable for damages caused to the client, except in cases of intent and gross negligence. In any case, liability for damages due to slight negligence as well as consequential damages and loss of profit is excluded.
9.2 Claims for damages 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.
9.3 The client agrees to assert any claims, on whatever basis, with regard to the services exclusively against TECHHOUSE, but not against other companies of the TECHHOUSE network or against partners or employees or against subcontractors.
10.1 The contract agreed between TECHHOUSE and the client may be terminated by either party with immediate effect.
10.2 In the event of premature termination of the contract agreed between TECHHOUSE and the client, the client, irrespective of which of the contracting parties has terminated, is obliged to pay TECHHOUSE the cash outlays, expenses and travel costs incurred, as well as a reasonable fee calculated taking into account the time spent on the services provided up to the termination of the contract.
10.3 If the contract agreed between TECHHOUSE and the client is terminated by the client - except in the case of termination due to a material breach of contract by TECHHOUSE - or by TECHHOUSE due to a material breach of contract by the client, the client is further obliged to compensate TECHHOUSE for all reasonable additional costs incurred by TECHHOUSE in connection with the premature termination.
10.4 Should TECHHOUSE be legally obligated to provide further services despite termination of the order, the client shall also be obligated to pay a corresponding fee for those services.
10.5 If the client fails to perform a task assigned to him, fails to perform it properly or in a timely manner, or in the case of other lack of cooperation, the client is obligated to compensate TECHHOUSE for the additional expenses incurred.
11 SOLICITATION OF EMPLOYEES
11.1 The client agrees not to entice away or employ any service personnel or other employees of TECHHOUSE or any company of the TECHHOUSE network who were directly or indirectly involved in the provision of the services. This obligation exists during the term of the contractual relationship and for a further six months after termination of the contractual relationship. If this obligation is not complied with by the client, compensation must be paid to TECHHOUSE by the client in the amount of six months' salary of the employee concerned. The compensation shall not be subject to judicial mitigation. Any further claims for damages shall remain unaffected.
12 FINAL TERMS
12.1 Should any condition of the contract concluded between TECHHOUSE and the client be invalid or unenforceable in whole or in part, this shall not affect the validity as well as the performance of the remaining conditions of the contract. The contracting parties shall replace the invalid or unenforceable condition with a valid and enforceable condition that comes as close as possible to the invalid or unenforceable condition in economic terms.
12.2 A contract concluded between TECHHOUSE and the client contains all regulations made between the contracting parties with regard to the services; no oral agreements have been made. All agreements previously made between the contracting parties orally, in writing or in any other form with regard to the services shall lose their effectiveness with the signing of the contract agreed between TECHHOUSE and the client.
12.3 In the event of a conflict between the order letter and these General Terms and Conditions, the General Terms and Conditions shall take precedence, unless the order letter expressly provides for an amendment or supplement to individual points of these General Terms and Conditions. In the event of a conflict between the order letter and any (other) document referred to in the order letter or attached to the order letter, the order letter shall prevail.
12.4 Neither party shall be liable to the other for failure to perform any obligation due to circumstances beyond their respective control.
12.5 Neither party may transfer or encumber any of its rights or obligations under the contract agreed between TECHHOUSE and the Client without the prior written consent of the other party.
13 DISPUTE RESOLUTION, APPLICABLE LAW, PLACE OF JURISDICTION
13.1 The contract agreed between TECHHOUSE and the client, its construction and all claims resulting therefrom shall be governed exclusively by Austrian law.
13.2 The first contact person for any concerns or complaints regarding the services is the TECHHOUSE partner with overall responsibility named in the order letter.
13.3 For all legal disputes arising from or in connection with the contract concluded between TECHHOUSE and the client, the jurisdiction of the District Court for Commercial Matters Vienna or the Commercial Court Vienna is agreed, depending on the amount in dispute.