General Terms and Conditions of PROFarm Consulting GmbH for Management Consulting Services
1. General Principles / Scope of Application
1.1 These general terms and conditions apply exclusively to all legal transactions between the client and the contractor (PROFarm Consulting GmbH). The version valid at the time of the contract conclusion is decisive.
1.2 These general terms and conditions also apply to all future contractual relationships, including in cases where additional contracts do not explicitly reference them.
1.3 Conflicting general terms and conditions of the client are invalid unless expressly acknowledged in writing by the contractor.
1.4 If individual provisions of these general terms and conditions are or become invalid, this does not affect the validity of the remaining provisions and the contracts concluded based on them. The invalid provision shall be replaced by a valid provision that comes closest in meaning and economic purpose.
2. Scope of the Consulting Assignment / Representation
2.1 The scope of a specific consulting assignment will be contractually agreed upon in each case. If there are or arise ambiguities regarding the nature and scope of the assignment, the contractor is entitled to perform the assignment at their own discretion in the interest of the client or while safeguarding the client's interests.
2.2 The contractor is entitled to have the tasks incumbent upon them performed in whole or in part by third parties. Payment to the third party shall be made exclusively by the contractor. No direct contractual relationship of any kind arises between the third party and the client.
2.3 The client agrees not to enter into any business relationship of any kind with individuals or companies that the contractor uses to fulfill their contractual obligations, during and up to three years after the termination of this contractual relationship. The client will not commission these individuals or companies with consulting services that are similar to those offered by the contractor, except where the contractor expressly agrees to such services in each individual case.
3. Client’s Duty to Inform / Completeness Statement
3.1 The client ensures that the organizational conditions at their business location allow for an undisturbed working environment conducive to the rapid progress of the consulting process.
3.2 The client will also provide the contractor with comprehensive information about previously conducted and/or ongoing consultations – including those in other areas of expertise.
3.3 The client ensures that all necessary documents for the fulfillment and execution of the consulting assignment are presented to the contractor in a timely manner without special request and that the contractor is informed of all events and circumstances relevant to the execution of the consulting assignment. This also applies to documents, events, and circumstances that become known only during the consultant’s activities.
3.4 The client ensures that their employees and the legally required and, if applicable, established employee representatives (works council) are informed about the contractor’s activities before they commence.
3.5 It is noted that the client will present the results of the written reports to their tax advisor and, if necessary, to their attorney for review and confirmation. The client will inform the contractor of the results of this review.
4. Ensuring Independence
4.1 The contracting parties commit to mutual loyalty.
4.2 The contracting parties agree to take all precautions necessary to prevent any threat to the independence of the contractor's third parties and employees. This particularly applies to offers from the client for employment or for taking on assignments on their own account.
5. Reporting / Reporting Obligations
5.1 The contractor is obliged to report on their work, the work of their employees, and, if applicable, that of third parties engaged to the client according to the progress of the work, as explicitly agreed.
5.2 The final report shall be provided to the client, if separately agreed, within a reasonable period after the completion of the assignment.
5.3 The contractor is free to act at their own discretion and responsibility in the production of the agreed work. They are not bound to any specific work location or working hours.
6. Protection of Intellectual Property
6.1 The copyright to works created by the contractor and their employees and engaged third parties (including offers, reports, analyses, opinions, organizational plans, programs, performance descriptions, drafts, calculations, drawings, data carriers, etc.) remains with the contractor. The client may use the works only for purposes covered by the contract during and after the termination of the contractual relationship. The client is not entitled to duplicate and/or distribute the work (or works) without the contractor's explicit consent. Unauthorized duplication/distribution of the work does not create any liability for the contractor, particularly regarding the accuracy of the work, towards third parties.
6.2 A violation of these provisions by the client entitles the contractor to terminate the contractual relationship immediately and to assert other legal claims, particularly for injunction and/or damages.
7. Warranty
7.1 The contractor is entitled and obliged to correct inaccuracies and defects in their performance, regardless of fault. They will notify the client of such corrections immediately.
7.2 The client’s claim expires 6 months after the delivery of the contested performance (reporting).
7.3 The client is entitled to free correction of defects if they are attributable to the contractor. If correction fails, the client is entitled to a reduction or, if the performance is of no interest to the client due to the failed correction, the right to rescind the contract. In the case of warranty, correction takes precedence over reduction or rescission.
8. Liability / Compensation
8.1 The contractor is liable to the client for damages – except for personal injury – only in cases of gross negligence (intent or gross negligence). This applies similarly to damages resulting from third parties engaged by the contractor. Liability for lost profits, missed savings, indirect damages, and consequential damages is excluded. Liability is limited in each case to the insurance coverage of the liability insurance.
8.2 Claims for damages by the client can only be asserted in court within six months of knowledge of the damage and the liable party, but no later than three years after the event giving rise to the claim.
8.3 The client must prove that the damage is attributable to the contractor’s fault.
8.4 If the contractor performs the work with the assistance of third parties and warranty and/or liability claims arise against these third parties, the contractor assigns these claims to the client. In this case, the client will only address these third parties.
9. Confidentiality / Data Protection
9.1 The contractor is obligated to maintain strict confidentiality about all business matters they become aware of, particularly business and operational secrets, as well as any information they receive about the client’s nature, business scope, and practical activities.
9.2 Furthermore, the contractor agrees to keep confidential the entire content of the work and all information and circumstances related to the creation of the work, including data on the client’s clients, from third parties.
9.3 The contractor is released from the confidentiality obligation concerning any assistants and representatives they use. However, they must impose the confidentiality obligation on these individuals and are liable for breaches of confidentiality by them as if it were their own breach.
9.4 The confidentiality obligation extends indefinitely beyond the end of the contractual relationship.
9.5 The contractor is entitled to process personal data entrusted to them within the scope of the contract’s purpose. The client guarantees that all necessary measures, especially those required by data protection laws, such as consent declarations from the data subjects, have been taken.
9.6 The contractor is entitled to name the client as a reference without providing detailed information about the work performed for the client.
10. Fees
10.1 Upon completion of the agreed work, the contractor will receive a fee according to the agreement between the client and the contractor. The contractor is entitled to submit interim invoices according to the progress of the work and to request interim payments accordingly. The fee is due upon invoicing by the contractor.
10.2 Any cash expenses, costs, travel expenses, etc., are to be reimbursed by the client in addition to the contractor’s invoice.
10.3 If the execution of the agreed work is not carried out due to reasons attributable to the client or due to a justified early termination of the contractual relationship by the contractor, the contractor retains the right to claim a cancellation fee as follows: 50% if between 4 and 2 weeks before the agreed start of work, 100% if within 2 weeks of the agreed start date.
10.4 In the event of non-payment of interim invoices, the contractor is relieved of their obligation to provide further services. However, the assertion of further claims resulting from non-payment is not affected.
11. Contract Duration
11.1 This contract generally ends with the completion of the project.
11.2 Notwithstanding this, the contract can be terminated at any time by either party for important reasons without notice. Important reasons include:
- A party violating significant contractual obligations, or
- An insolvency procedure being opened against a party, or the bankruptcy petition being dismissed due to lack of sufficient assets.
12. Final Provisions
12.1 The parties confirm that all information in the contract has been made conscientiously and truthfully and commit to promptly informing each other of any changes.
12.2 Amendments to the contract and these general terms and conditions must be made in writing; this also applies to any departure from this requirement. No verbal side agreements exist.
12.3 Austrian substantive law, excluding international private law’s reference norms, applies to this contract. The place of performance is the contractor’s place of professional establishment. For disputes, the court at the contractor’s place of business is responsible.
As of 11/2020
General Terms and Conditions of PROFarm Consulting GmbH for Services in Advertising, Graphic Design, Animation Creation, Film Production, and Programming
1. Scope, Conclusion of Contract
1.1 PROFarm Consulting GmbH (hereinafter "Service Provider") provides its services exclusively based on the following General Terms and Conditions (GTC). These apply to all legal relationships between the Service Provider and the Client, even if not explicitly referenced.
1.2 The version of the GTC valid at the time of the conclusion of the contract is decisive. Deviations from these GTC and other supplementary agreements with the Client are only effective if confirmed in writing by the Service Provider.
1.3 Any terms and conditions of the Client will not be accepted, even if known, unless explicitly agreed otherwise in writing on a case-by-case basis. The Service Provider explicitly rejects the Client's GTC. No further objection to the Client's GTC by the Service Provider is required.
1.4 Amendments to the GTC will be communicated to the Client and are considered agreed upon if the Client does not object to the amended GTC in writing within 14 days; the Client will be explicitly informed about the significance of silence in the notification.
1.5 Should individual provisions of these General Terms and Conditions be invalid, this does not affect the validity of the remaining provisions and the contracts concluded based on them. The invalid provision shall be replaced by a valid one that comes closest to the intended purpose.
1.6 The Service Provider's offers are non-binding and subject to change.
2. Social Media Channels
The Service Provider explicitly informs the Client before the order that the providers of "social media channels" (e.g., Facebook, hereinafter referred to as "Providers") reserve the right in their terms of use to reject or remove advertising and promotional content for any reason. Therefore, the Providers are not obligated to forward content and information to users. Consequently, there is a risk that advertising and promotional content may be removed without cause, a risk that the Service Provider cannot calculate. Although Providers allow for a counter-statement in the event of a complaint by another user, the content will still be removed immediately. Regaining the original, lawful status may take some time. The Service Provider operates based on these terms of use of the Providers, which it cannot influence, and bases the Client's order on them. By placing the order, the Client expressly acknowledges that these terms of use determine the rights and obligations of any contractual relationship. The Service Provider intends to perform the Client’s order to the best of its ability and comply with the "social media channels'" guidelines. However, due to the current terms of use and the simple possibility for any user to claim legal violations and thus achieve removal of content, the Service Provider cannot guarantee that the commissioned campaign will always be accessible.
3. Concept and Idea Protection
If the potential Client has invited the Service Provider to create a concept before the main contract is concluded, and the Service Provider complies with this invitation before the main contract is finalized, the following provisions apply:
3.1 By the invitation and the acceptance of the invitation by the Service Provider, the potential Client and the Service Provider enter into a contractual relationship ("Pitching Contract"). These GTC also apply to this contract.
3.2 The potential Client acknowledges that the Service Provider incurs cost-intensive preliminary expenses in the development of the concept, even though the Service Provider has not yet assumed any performance obligations.
3.3 The concept, in its linguistic and graphic parts, is subject to the protection of copyright law if these parts reach the level of a work. Use and modification of these parts without the Service Provider’s consent is not permitted to the potential Client based on copyright law.
3.4 The concept also contains advertising-relevant ideas that do not reach the level of a work and thus do not enjoy protection under copyright law. These ideas are at the beginning of any creative process and can be defined as the spark for everything created later and thus as the origin of the marketing strategy. Therefore, elements of the concept that are unique and give the marketing strategy its distinctive character are protected. Ideas in the sense of this agreement include, in particular, advertising slogans, advertising texts, graphics and illustrations, advertising materials, etc., even if they do not reach the level of a work.
3.5 The potential Client agrees not to commercially exploit or use the creative advertising ideas presented by the Service Provider within the scope of the concept outside the corrective framework of a later main contract, or to have them exploited or used.
3.6 If the potential Client believes that ideas presented by the Service Provider were already conceived by them before the presentation, they must inform the Service Provider in writing within 14 days of the presentation date via email, providing evidence that allows a temporal allocation.
3.7 Otherwise, the parties assume that the Service Provider presented a new idea to the potential Client. If the idea is used by the Client, it is assumed that the Service Provider has earned a fee.
3.8 The potential Client can release themselves from their obligations under this section by paying an appropriate compensation plus 20% VAT. The release occurs only after the full payment of the compensation has been received by the Service Provider.
4. Scope of Services, Order Processing, and Client Cooperation Obligations
4.1 The scope of the services to be provided is detailed in the service description in the Service Provider contract or any order confirmation from the Service Provider, as well as any briefing protocol ("Offer Documents"). Subsequent changes to the scope of services require written confirmation by the Service Provider. Within the framework specified by the Client, the Service Provider has creative freedom in fulfilling the order.
4.2 All services of the Service Provider (particularly all preliminary drafts, sketches, final drawings, proof prints, blueprints, copies, color prints, and electronic files) must be reviewed by the Client and approved by them within three business days of receipt. If not approved in time, they are considered approved by the Client.
4.3 The Client will provide the Service Provider with all information and documents necessary for the performance of the service in a timely and complete manner. They will inform the Service Provider of all circumstances relevant to the execution of the order, even if these become known only during the execution. The Client bears the effort required for any work that needs to be repeated or delayed due to incorrect, incomplete, or subsequently changed information provided by them.
4.4 The Client is further obligated to check (rights clearing) the documents (photos, logos, etc.) provided for the execution of the order for any copyrights, trademark rights, identification rights, or other third-party rights and guarantees that the documents are free of third-party rights and thus usable for the intended purpose. The Service Provider is not liable in the event of slight negligence or after fulfilling its duty to warn – in any case, in relation to the Client – for violations of such third-party rights by the provided documents. If the Service Provider is held liable by a third party for such a violation, the Client shall indemnify and hold the Service Provider harmless; the Client shall compensate the Service Provider for any disadvantages resulting from claims by third parties, including the costs of reasonable legal representation. The Client undertakes to support the Service Provider in defending against any third-party claims. The Client shall provide all necessary documents to the Service Provider unsolicited.
5. Third-Party Services / Engagement of Third Parties
5.1 The Service Provider is entitled at its discretion to perform the service itself, to use knowledgeable third parties as subcontractors for the performance of the services subject to the contract, and/or to substitute such services ("Third-Party Services").
5.2 The engagement of third parties in the context of Third-Party Services is done either in the Service Provider's name or on behalf of the Client. The Service Provider will select these third parties carefully and ensure they have the necessary technical qualifications.
5.3 To the extent that the Service Provider commissions necessary or agreed Third-Party Services, the respective contractors are not considered subcontractors of the Service Provider.
5.4 The Client is responsible for obligations to third parties that extend beyond the duration of the contract. This expressly also applies in the event of termination of the Service Provider contract for good cause.
6. Deadlines
6.1 Stated delivery or performance deadlines are, unless expressly agreed as binding, only approximate and non-binding. Binding deadlines must be recorded in writing or confirmed in writing by the Service Provider.
6.2 If the delivery/performance of the Service Provider is delayed due to reasons for which it is not responsible, such as force majeure and other unforeseeable events that cannot be avoided with reasonable means, the performance obligations are suspended for the duration and extent of the hindrance, and the deadlines are extended accordingly. If such delays last more than two months, both the Client and the Service Provider are entitled to withdraw from the contract.
6.3 If the Service Provider is in default, the Client can only withdraw from the contract after setting the Service Provider a reasonable extension of at least 14 days in writing and this period has expired without success. Claims for damages by the Client due to non-performance or delay are excluded, except in cases of intent or gross negligence.
7. Early Termination
7.1 The service provider is entitled to terminate the contract with immediate effect for important reasons. An important reason exists in particular if:
a) The performance of the service becomes impossible due to reasons attributable to the client, or if it continues to be delayed despite the setting of a 14-day grace period;
b) The client repeatedly violates essential obligations under this contract, such as payment of an overdue amount or cooperation duties, despite a written warning with a 14-day grace period;
c) There are legitimate concerns about the client’s creditworthiness, and the client neither makes advance payments nor provides suitable security before the service provider performs the service.
7.2 The client is entitled to terminate the contract for important reasons without setting a grace period. An important reason exists in particular if the service provider repeatedly violates essential terms of this contract despite a written warning with a reasonable grace period of at least 14 days to remedy the breach.
8. Fees
8.1 Unless otherwise agreed, the service provider’s fee for each individual service arises as soon as it has been provided. The service provider is entitled to demand advances to cover their expenses. For an order volume with an (annual) budget of €4,000.00 or more, or those extending over a longer period, the service provider is entitled to issue interim invoices or request advance payments.
8.2 The fee is understood as a net fee plus statutory VAT. In the absence of a specific agreement, the service provider is entitled to a fee at market rates for the services provided and the transfer of copyright and trademark usage rights.
8.3 All services of the service provider not expressly covered by the agreed fee will be separately remunerated. All out-of-pocket expenses incurred by the service provider are to be reimbursed by the client.
8.4 Cost estimates provided by the service provider are non-binding. If it becomes apparent that the actual costs exceed the written estimate by more than 15%, the service provider will notify the client of the higher costs. The cost overrun is considered approved by the client if the client does not object in writing within three business days of this notice and simultaneously provides more cost-effective alternatives. For cost overruns up to 15%, no separate notice is required. This cost estimate overrun is deemed approved by the client from the outset.
8.5 For all work by the service provider that is not executed by the client for any reason, the agreed fee is due. The offsetting provision of § 1168 ABGB is excluded. By paying the fee, the client does not acquire any usage rights for the work already performed; unexecuted concepts, drafts, and other documents must be promptly returned to the service provider.
9. Payment, Retention of Title
9.1 The fee is due immediately upon receipt of the invoice and without deduction unless special payment terms are agreed in writing. This also applies to the recharging of all out-of-pocket expenses and other expenditures. The goods delivered by the service provider remain the property of the service provider until the full payment of the fee, including all ancillary obligations.
9.2 In case of payment default by the client, statutory default interest rates applicable to commercial transactions will apply. Furthermore, in the event of payment default, the client agrees to reimburse the service provider for any reminder and collection costs that are necessary for appropriate legal action. This includes the cost of two reminders at a market rate of currently at least €20.00 per reminder and one reminder from a lawyer engaged in collection. The assertion of further rights and claims remains unaffected.
9.3 In the event of payment default by the client, the service provider may immediately declare all services and partial services provided under other contracts with the client due for payment.
9.4 Additionally, the service provider is not obligated to perform further services until the outstanding amount is settled (right of retention). The obligation to pay the fee remains unaffected.
9.5 If payment in installments was agreed upon, the service provider reserves the right to demand immediate payment of the entire outstanding debt in the event of late payment of partial amounts or ancillary claims (loss of deadlines).
9.6 The client is not entitled to offset their own claims against the service provider's claims unless the client's claim has been acknowledged by the service provider in writing or established by a court.
10. Ownership and Copyright
10.1 All services provided by the service provider, including those from presentations (e.g., suggestions, ideas, sketches, drafts, scribbles, finished drawings, concepts, negatives, slides), as well as individual parts thereof, remain the property of the service provider and can be requested back by the service provider at any time, particularly upon termination of the contractual relationship. The client acquires the right to use the services for the agreed purpose upon payment of the fee. Unless otherwise agreed, the client may only use the service provider's services within Austria. The acquisition of usage and exploitation rights for the service provider's services requires full payment of the fees charged by the service provider. If the client uses the services of the service provider before this time, such use is based on a loan relationship that can be revoked at any time.
10.2 Changes or modifications to the service provider’s services, such as further development by the client or third parties acting on their behalf, are only permitted with the explicit consent of the service provider and, if the services are protected by copyright, the author.
10.3 For the use of services of the service provider that goes beyond the originally agreed purpose and scope of use, the consent of the service provider is required, regardless of whether the service is protected by copyright. The service provider and the author are entitled to a separate reasonable fee for this.
10.4 For the use of services of the service provider or advertising materials for which the service provider has created conceptual or design templates, the service provider’s consent is also required after the end of the service provider contract, regardless of whether the service is protected by copyright or not.
10.5 For uses according to Paragraph 4, the service provider is entitled to the full fee agreed upon in the expired contract for the first year after the contract ends. In the second and third years after the contract ends, only half and a quarter of the agreed fee, respectively. No service provider fee is payable from the fourth year after the end of the contract.
10.6 The client is liable to the service provider for any unlawful use at double the amount of the appropriate fee for that use.
11. Attribution
11.1 The service provider is entitled to credit themselves and, if applicable, the author on all advertising materials and in all advertising measures, without the client having any claim to compensation.
11.2 The service provider, subject to the possibility of a written revocation by the client at any time, is entitled to refer to the existing or previous business relationship with the client on their own advertising materials, particularly on their website (reference notice).
12. Warranty
12.1 The client must report any defects immediately, and in any case within eight days of delivery/performance by the service provider, and hidden defects within eight days of discovering them, in writing with a description of the defect; otherwise, the service is deemed approved. In this case, claims for warranty and damages, as well as the right to contest the contract due to defects, are excluded.
12.2 In the case of a legitimate and timely complaint about defects, the client is entitled to have the service corrected or replaced by the service provider. The service provider will remedy the defects within a reasonable time, with the client enabling all measures necessary for investigation and rectification of the defects. The service provider is entitled to refuse the correction of the service if it is impossible or involves disproportionate effort. In this case, the client is entitled to statutory rights of rescission or reduction. In the case of correction, it is the client’s responsibility to arrange the return of the defective (physical) item at their own expense.
12.3 It is also the client’s responsibility to verify the legal, particularly competition, trademark, copyright, and administrative law compliance of the service. The service provider is only obliged to perform a rough check of legal compliance. The service provider is not liable for the legal compliance of contents if these have been specified or approved by the client, in cases of slight negligence or after fulfilling any warning obligation to the client.
12.4 The warranty period is six months from delivery/performance. The right of recourse against the service provider under § 933b Abs 1 ABGB expires one year after delivery/performance. The client is not entitled to withhold payments due to complaints. The presumption rule of § 924 ABGB is excluded.
13. Liability and Product Liability
13.1 In cases of slight negligence, liability of the service provider and their employees, contractors, or other vicarious agents ("persons") for property or financial damages of the client is excluded, regardless of whether it concerns direct or indirect damages, lost profits or consequential damages, damages due to delay, impossibility, positive breach of claim, fault at contract conclusion, or due to defective or incomplete performance. The burden of proof for gross negligence rests with the injured party. To the extent that the service provider's liability is excluded or limited, this also applies to the personal liability of their "persons."
13.2 Any liability of the service provider for claims raised by the client based on the services provided (e.g., advertising measures) is expressly excluded if the service provider has fulfilled their duty to inform or if such a duty was not apparent, with slight negligence not affecting this. In particular, the service provider is not liable for legal costs, the client’s own legal fees, or costs of judgment publications, as well as any claims for damages or other third-party claims; the client must indemnify the service provider in this regard.
13.3 Claims for damages by the client expire six months from knowledge of the damage, but in any case after three years from the injurious act of the service provider. Damages claims are limited to the net order value.
14. Data Protection (optical emphasis in accordance with jurisprudence)
The client agrees that their personal data, namely name/company, profession, date of birth, company registration number, powers of representation, contact person, business address and other addresses, telephone number, fax number, email address, bank details, credit card information, UID number) may be collected, stored, and processed automatically for the purpose of contract fulfillment and client support, as well as for the service provider's own advertising purposes, such as sending offers, promotional materials, and newsletters (in paper and electronic form), and for the purpose of referencing the existing or previous business relationship with the client (reference notice). The client agrees to receive electronic mail for advertising purposes until further notice. This consent can be revoked at any time in writing via email, fax, or letter to the contact details listed at the top of the General Terms and Conditions.
15. Applicable Law
The contract and all mutual rights and obligations, as well as claims between the service provider and the client, are governed by Austrian substantive law, excluding its conflict of laws rules and the UN Sales Convention.
16. Place of Fulfillment and Jurisdiction
16.1 The place of fulfillment is the service provider's registered office. Risk passes to the client upon delivery of the goods to the carrier chosen by the service provider.
16.2 The court competent for the service provider's registered office is agreed as the place of jurisdiction for all disputes arising between the service provider and the client in connection with this contractual relationship. Notwithstanding this, the service provider is entitled to sue the client at their general place of jurisdiction.
16.3 To the extent that designations in this contract related to natural persons are mentioned only in the masculine form, they refer equally to women and men. In applying the designation to specific natural persons, the respective gender-specific form is to be used.
As of 11/2020