GTC

TERMS AND CONDITIONS OF BUSINESS OF AVANOC IT & MANAGEMENT CONSULTING GMBH

I. Preamble

(General Principles of Cooperation)
1. These “General Contractual Terms and Conditions for Corporate Consulting” form an integral part of contracts for work and services relating to specialist consulting provided to Clients by Avanoc IT & Management Consulting GmbH (Avanoc).

2. In the event that specific provisions in these terms and conditions of business are or should become invalid, this shall not affect the validity of the remaining provisions. The provisions that have become invalid after conclusion of the contract shall be substituted by a subsequent provision that corresponds as closely as possible to the original intent of the parties.

3. Avanoc is entitled to have the consulting contract performed in whole or in part by experienced employees and/or business/freelance cooperation partners.

4. The Client shall ensure that there are the organisational outline conditions at the business premises of the Client or the location where the contract is to be performed that allow for uninterrupted work conducive to the consulting work progressing rapidly. The Client shall in particular provide Avanoc in good time with the infrastructure that is necessary for the contract to be fulfilled.

5. The Client shall ensure that Avanoc is provided in good time, and without having to make a special request, with all documentation necessary for the consulting contract to be performed and implemented and guarantees that all preconditions contained in the offer are correct and that Deloitte will be given the requisite reliable, accurate and complete information. The Client guarantees that it will make all decisions that are necessary to fulfil the contract in a timely fashion and will, where required, obtain the necessary approvals. The same applies to all documents, procedures and facts which do not occur or become known until during the consulting work. The Client guarantees that its employees and the statutory employee representatives that are provided or appointed as necessary have already been informed prior to the start of the consulting work or that any necessary approvals are available. Unless otherwise agreed, Avanoc shall not be obliged to evaluate, to consult regarding or amend, confirm or reject such company decisions and approvals.

6. The confidential relationship between the Client and Avanoc requires Avanoc to be fully informed of prior and ongoing consulting work, even if it relates to other specialist areas.

7. The confidential relationship also requires strict confidentiality. With regard to this contract and all information provided in connection with this consulting contract that has been designated as confidential by the disclosing party, the recipient undertakes to protect the confidential information adequately and/or in accordance with the applicable professional principles, to use it only to perform this contract and to copy it only where necessary to fulfil this contract. The other party to the contract must be informed of this. Confidentiality does not apply to information that is already known to third parties and the recipient.

II. Terms and Conditions

§1 Validity and Scope
These terms and conditions of business shall apply if their application has been agreed either expressly or by implication.
They shall apply even if not expressly agreed if a subsequent contract is issued.

§2 Scope of consulting contract
The scope of the consulting contract shall be agreed in writing. Additions or amendments to said consulting contract must also be made in writing to be valid.

§3 Services to be provided
Avanoc is obliged to provide the consulting work specifically designated in the offer but is not obliged to provide a specific financial outcome.
The results achieved or studies made by Avanoc may only be used, copied, internally distributed or amended by the Client for its own business purposes.
In the event of amendments Avanoc is exempt from any resulting liability for damages and breach of warranty. In the event of amendments made without the approval of Avanoc the Client is not entitled to use the name and/or logo of Avanoc.
Without the prior written approval of Avanoc the Client is prohibited from disclosing in whole or in part, quoting to third parties from or referring to the results or studies to be produced. Even where there is written approval the Client is prohibited from disclosing in whole or in part to third parties, quoting to third parties from or referring to the results or studies to be produced if the economic environment and the outline conditions have altered in the interim and/or the study has been superseded in the meantime.

§4 Acceptance
The Client is obliged to accept the results produced and developed by Avanoc as being in accordance with the contract if they correspond to the specifications in the offer or the contract or if they pass the acceptance test plan. The Client shall immediately inform Avanoc if the results do not accord with said specifications. Avanoc is entitled and obliged to eliminate any discrepancies or inaccuracies and defects in its consulting work and inform the Client thereof immediately.
The Client is entitled to have the defects eliminated at no charge provided these are caused by Avanoc. This entitlement shall expire no later than 6 months after the work complained of has been performed.
The Client is obliged to check the work results provided by Avanoc immediately. Any complaints must be made immediately and in writing and the defect must be specified precisely.
If Avanoc is not able to make good any defects, the Client is then entitled to an abatement and if necessary to cancellation pursuant to § 932 ABGB [General Terms and Conditions of Business Act].

§5 Liability
In carrying out the consulting work and performing the contract, Avanoc and its employees shall act in accordance with generally accepted professional principles. Avanoc shall only be liable if it is responsible for wilful intent or gross negligence. The same applies if Avanoc uses third parties to perform the contract.
Any damages claims must be asserted in court within three months from the damage becoming known but in any event no later than three years after the event giving rise to the claim, otherwise they will be excluded.
If Avanoc enlists a third party such as a data-processing company, a financial trustee or a solicitor to provide its consulting services and if it has informed the Client of this in writing, Avanoc shall not be liable and only the enlisted third party will now be liable to the Client for the damage caused by it [the third party –tr.].
Avanoc’s liability to the Client is limited to ten times the contract amount and in any event to EUR 350,000. The total of the damages claims of all claimants arising from one discrete job is considered as a single loss event. In respect of a loss that has arisen in the context of several similar discrete jobs due to several infractions based on the same technical error Avanoc shall similarly only be liable for up to EUR 350,000.
If, in the opinion of the Client, the potential loss or damage exceeds the aforementioned amount, Avanoc shall try, at the request of Client, to take out additional insurance on top of the existing liability insurance to cover said risk provided the Client assumes the insurance premium due for this.

§6 Confidentiality
Avanoc, its employees and the enlisted cooperation partners undertake to keep confidential all matters that become known to them while working for the Client.
Avanoc may only provide reports, expert opinions and other correspondence concerning the job and its results to third parties with the approval of the Client.
The obligation to confidentiality of Avanoc, its employees and the enlisted cooperation partners shall also apply after the contract has terminated, except for cases where there is a statutory obligation to provide information. Where there is a professional obligation to confidentiality any provision of information requires prior written release.
Avanoc is entitled to process and have third parties process personal-related data entrusted to it in the course of the consulting contract awarded to it. Avanoc guarantees that it will comply with the obligation to ensure data secrecy pursuant to the provisions of the Data Protection Act and will also bind any enlisted third parties to do likewise.
Material provided to Avanoc such as data media, data, control figures, analyses, programs etc. and all results from the implementation of the work shall be returned to the Client no later than completion of the contract.

§7 Staff
Avanoc will endeavour to comply as far as possible with the Client’s
desire to use certain employees but expressly reserves the right to use employees at its own discretion and reallocate them as is appropriate, relevant and possible to perform the services.
During the term of this contract and during a further period of six months after termination of the contractual relationship, the Client is prohibited from employing Avanoc employees who have been involved with performing the contract. In the event of a breach of said obligation the Client shall pay liquidated damages of EUR 50,000 which is not subject to a judge’s mitigation right.

§8 Notice of termination
This contact may be terminated by either party subject to 30 days’ written notice.
The Client shall reimburse Avanoc for the work produced by the end of the contractual relationship and any costs arising and shall compensate Avanoc for all justified costs arising in connection with the notice of termination.

§9 General provisions
The Client may not use the name, trademark, logos etc. of Avanoc. Avanoc may mention or list the name and the trademark and/or a general description concerning the project unless otherwise agreed. The Client agrees to provide information after Avanoc has informed it.
The Client is not entitled to transfer rights or duties arising from this contract to third parties without Avanoc’s prior written consent. Avanoc is entitled to transfer rights and duties arising from this contract to a subsidiary or affiliated company in its international group or to use subcontractors to perform the work.
Additions or amendments to this contract must be made in writing. For reasons of legal security there can be no contractual exemption from this requirement that said amendments or additions must be in writing.
The place of performance is Vienna and the Commercial Court of Vienna shall have jurisdiction for disputes arising from this contract.
With the exception of matters connected with confidentiality or intellectual property rights, the parties undertake to settle disputes or alleged contractual breaches amicably, to conduct mediation proceedings prior to commencing any litigation and only to commence legal proceedings if said mediation proceedings fail.
Austrian law shall apply exclusively to this contract.