Preamble
These General Terms and Conditions apply to all contracts concluded with AES Consulting GmbH, FN 476368 t.
These General Terms and Conditions expressly do not apply to liabilities under data protection law.
The privacy policy can be found at https://www.aes-consulting.at/de/datenschutzerklarung/. For further questions or information about data protection, please send an e-mail to office@aes-consulting.at or a letter to AES Consulting GmbH, Taubstummengasse 13/5a, 1040 Vienna.
I. Validity
1. AES Consulting GmbH shall provide services exclusively based on these General Terms and Conditions (GTC). These shall apply – unless expressly waived in writing – to all legal relationships between AES Consulting GmbH and the client, even if no express reference is made to them.
2. The version of the GTC valid at the time of conclusion of the contract shall be authoritative. Deviations from these and other supplementary agreements with the client shall only be effective if they are confirmed in writing by AES Consulting GmbH.
3. Any terms and conditions of the client shall not be accepted, even if known, unless otherwise expressly agreed in writing in individual cases. AES Consulting GmbH expressly objects to any general terms and conditions of the client. No further objection by AES Consulting GmbH to the client’s general terms and conditions shall be required.
4. The client shall be notified of amendments to the GTC and shall be deemed to have been agreed if the client does not object to the amended GTC in writing within 14 calendar days; the client shall be expressly informed of the significance of silence in the notification.
II. Offers
1. Offers from AES Consulting GmbH are non-binding unless their binding nature has been expressly agreed in writing.
2. Binding offers shall be maintained by AES Consulting GmbH for a period of 14 working days. If the order is placed after this period has expired, AES Consulting GmbH shall not be bound by the offer any more. After expiry of the binding effect of the offer, the client shall have no claim to the provision of services in accordance with the offer. AES Consulting GmbH shall be entitled to examine the offer and, if necessary, to correct or withdraw it without the client being entitled to any claims arising from this.
3. As soon as it is foreseeable that the prices agreed in writing and bindingly by AES Consulting GmbH will increase by more than 15 %, AES Consulting GmbH shall inform the client of the higher costs. If the client is an entrepreneur, the price increase shall be deemed to have been approved by the client if the client does not object in writing within three working days of this notification and at the same time announces more cost-effective alternatives.
4. A price increase of up to 15 % does not require separate notification. This shall be deemed to have been approved by the client from the beginning.
III. Conclusion of contract
1. A contract between the client and AES Consulting GmbH is concluded when the client accepts a binding offer from AES Consulting GmbH.
2. If a non-binding offer is accepted by the client or if the acceptance takes place after the expiry of the binding period of an offer, the contract shall only be concluded upon written confirmation of the declaration of acceptance by AES Consulting GmbH.
3. Offers corrected or amended by AES Consulting GmbH require a declaration of acceptance by the client in order to establish a contractual relationship between the parties.
IV. Property rights and copyright
1. All services of AES Consulting GmbH, including those from presentations (e.g. concepts, drafts, samples, templates, explanations, instructions, directories, texts, text modules, explanations, handouts, etc.), even individual parts thereof, shall remain the property of AES Consulting GmbH until the agreed fee has been paid in full.
2. By paying the fee, the client acquires the right of use for the agreed purpose. If the client already uses the services of AES Consulting GmbH before paying them, this use is based on a loan relationship against payment that can be revoked at any time.
3. Any use, transfer, transmission, publication, duplication, utilisation, sale or other use beyond the agreed purpose and/or scope is expressly prohibited, irrespective of whether this is done for a fee or free of charge.
4. For the use of services of AES Consulting GmbH that go beyond the originally agreed purpose and scope of use – regardless of whether this service is protected by copyright – the prior consent of AES Consulting GmbH is required. AES Consulting GmbH shall be entitled to separate appropriate remuneration for this.
5. The client shall be liable to AES Consulting GmbH for any unlawful use in double the amount of the reasonable fee for such use.
V. Labelling
1. Documents, photos or other material of AES Consulting GmbH made publicly available on the Internet, in social media or otherwise may only ever be used with reference to AES Consulting GmbH, by naming the company name or using the logo/brand.
2. AES Consulting GmbH shall be authorised to use the logo/brand and the name/company of the client for its own advertising and marketing purposes free of charge, with reference to the existing or terminated contractual relationship, without any restrictions in terms of time or space. The client shall have an editorial right of veto.
VI. Provision of services
1. AES Consulting GmbH shall be entitled, at its own discretion, to perform services itself, to utilise third parties in the provision of commissioned services and/or to substitute such services, whereby the professional suitability and relevant qualifications of third parties to be commissioned shall always be considered.
2. If AES Consulting GmbH has brokered a transaction between a client and a third party and it becomes impossible for the client or the brokered third party to fulfil its obligations, AES Consulting GmbH shall be indemnified against all claims and claims shall be settled directly between the client and the third party. This also applies to claims arising from breaches of contract, claims for damages and other liabilities.
3. The client shall be responsible for direct obligations to third parties that extend beyond the term of the contract with AES Consulting GmbH. This also applies expressly in the event of cancellation of the contract with AES Consulting GmbH for good cause.
4. If AES Consulting GmbH commissions external service providers, the client is prohibited from using the contacts established by AES Consulting GmbH for the conclusion of direct transactions. In the event of a breach of this obligation, AES Consulting GmbH shall be placed in the same position as if the unauthorised direct transaction had been conducted via AES Consulting GmbH.
5. The client undertakes to provide AES Consulting GmbH with complete and detailed information or documents and to answer all questions from AES Consulting GmbH truthfully and without delay so as not to hinder AES Consulting GmbH in the fulfilment of its obligations under the contract with the client.
VII. Terms of payment, invoicing
1. All invoices submitted by AES Consulting GmbH are due immediately upon receipt of the invoice and without any deductions. AES Consulting GmbH is authorised to invoice the client monthly for all services rendered.
2. The online payment system GP webpay from Global Payments has been set up on the homepage of AES Consulting GmbH (https://www.aes-consulting.at/de/) for the simple payment of an initial consultation, which enables payment by credit and debit card as well as mobile payment methods (e.g. Google Pay, Apple Pay). If a new client books and pays for an appointment for an initial consultation online via the homepage, the consultation service is deemed to have been paid for as soon as the payment is received in the account of AES Consulting GmbH. If an appointment is cancelled, the transferred amount will only be refunded up to 48 hours before the start of the appointment at the latest, after which it can no longer be reclaimed. If there is a lawful claim for refund, AES Consulting GmbH will transfer the amount back to the original account within 30 calendar days.
3. The fee for the provision of services of AES Consulting GmbH shall be charged by hour or as a lump sum, depending on the agreement. The prices for the provision of services may change in accordance with the consumer price index (VPI/HVPI).
4. Additional costs incurred, e.g. for office materials provided, for copies of documents made, travelling expenses or expenses for the commissioning of IT technicians, are always charged separately and are not included in the hourly rate.
5. Public charges, fees, taxes and other costs incurred in connection with the consultancy shall be borne directly by the client or, if agreed, reimbursed to AES Consulting GmbH against proof.
6. Unless otherwise agreed, an advance payment shall always be made. The remaining outstanding fee shall be paid to AES Consulting GmbH immediately after complete fulfilment of the order or upon termination of the contractual relationship.
7. AES Consulting GmbH reserves the right to postpone the execution of orders until outstanding invoices have been paid and to prohibit the use of services that have not yet been paid in full with immediate effect.
8. If payment in instalments has been agreed, AES Consulting GmbH reserves the right to demand immediate payment of the entire outstanding debt in the event of late payment of even only a partial amount or an ancillary claim (loss of deadline).
9. The right to offset (compensation) of a claim by a counterclaim is excluded for consumers, unless
– AES Consulting GmbH becomes insolvent,
– it is a counterclaim of the consumer that is legally related to his liability from a contract with AES Consulting GmbH,
– there is a legally binding court judgement on the consumer’s counterclaim, or
– AES Consulting GmbH has expressly accepted the counterclaim in writing.
– If there is no consumer transaction, the customer’s right to offset is generally excluded.
10. If the client is an entrepreneur, a right of retention of the client is excluded.
11. All services provided by AES Consulting GmbH that are not expressly covered by the agreed fee shall be remunerated separately. In the absence of any other agreement in individual cases, AES Consulting GmbH shall be entitled to a fee at the usual market rate for the services rendered.
VIII. Liability
1. AES Consulting GmbH undertakes to perform the contractually commissioned services with the diligence of a prudent businessman in the business of management consultancy.
2. The parties are aware of the fact that, for the most part, there are no officially or judicially approved rules of procedure and behaviour, guidelines, instructions, measures, templates, etc. in the area of “data protection”. In many cases, only official and/or court decisions and/or official guidelines will provide clear and unambiguous conditions. AES Consulting GmbH therefore accepts no liability for cases of damage resulting from official and/or court decisions, provided there is no intentional behaviour on the part of AES Consulting GmbH.
3. If the client is an entrepreneur, liability of AES Consulting GmbH, or other of its vicarious agents, for property damage or financial loss of the client is excluded in cases of slight fault, regardless of whether it is direct or indirect damage, loss of profit or consequential damage, damage due to delay, impossibility, positive breach of contract, culpa in contrahendo, due to defective or incomplete performance. The client must prove the existence of gross fault.
4. If the client is an entrepreneur, the application of § 934 ABGB (reduction by more than half) at the expense of the client is excluded.
5. If the client is an entrepreneur, the client’s claims for damages shall expire six months after becoming aware of the damage; in any case, however, after three years from the act of infringement by AES Consulting GmbH. Claims for damages shall be limited to the net order value.
6. If the client is an entrepreneur, the client’s right to contest errors is excluded, except in cases of gross fault.
7. Data protection claims are expressly not covered by the above liability provisions.
IX. Default
1. If AES Consulting GmbH is in default, the client shall be entitled to withdraw from the contract – except in the case of transactions for delivery by a fixed date, refusal of performance by AES Consulting GmbH or if it is obvious that AES Consulting GmbH is not in a position to provide the service within a reasonable period of time – if the client has set AES Consulting GmbH a reasonable grace period of at least 14 calendar days in advance together with the declaration of withdrawal and this grace period has expired without result.
2. In the event of late payment, AES Consulting GmbH shall be entitled to charge clients interest on arrears in the amount of 4%. AES Consulting GmbH reserves the right to claim higher damages from the client. For each reminder after the occurrence of default, AES Consulting GmbH shall be entitled to demand a reminder fee from the client in the amount of the costs actually incurred.
3. In business transactions with entrepreneurs, the default interest rate is 9.2% above the base rate. AES Consulting GmbH reserves the right to claim higher damages. For each reminder after the occurrence of default, AES Consulting GmbH shall be entitled to demand a reminder fee of at least € 40.00 or the actual costs incurred from the entrepreneur.
4. In the event of default of payment by the client, AES Consulting GmbH may invoice all services and partial services rendered, including those rendered within the framework of other contracts concluded with the client, with immediate maturity.
X. Obligations of the client
1. The client undertakes to inform AES Consulting GmbH in a timely and truthful manner about all measures relevant to the contractual relationship and the execution of the contract and to provide AES Consulting GmbH with the necessary documents, records, etc. in a suitable manner and in suitable formats or to enable technical access and access in a suitable manner.
2. The client shall inform AES Consulting GmbH immediately of all circumstances that are of significance for the execution of the order, even if these only become known during the execution of the order. The client shall bear the costs arising from the fact that services have to be repeated or adapted or are delayed as a result of incorrect, delayed, incomplete or subsequently amended information provided by the client.
3. The client must review all services provided by AES Consulting GmbH (in particular all drafts, concepts, samples, proposals) immediately and approve them within five working days of receipt. If the client is an entrepreneur, services shall be deemed to have been approved by the client if this period expires without feedback from the client.
4. In the event of unilateral cancellation or unilateral modification of the order already commissioned, the client shall remunerate AES Consulting GmbH for the services rendered up to that point in accordance with the fee agreement and reimburse all other costs incurred, notwithstanding any other ongoing support provided by AES Consulting GmbH. Concepts, drafts and other documents that have not been completed shall be returned to AES Consulting GmbH in full without delay. Any copies, printouts or other reproductions or prints must be destroyed by the client.
5. If the client is an entrepreneur and the cancellation is not due to a grossly negligent or intentional breach of duty by AES Consulting GmbH, the client shall also reimburse AES Consulting GmbH for the entire fee agreed for this order, whereby the offsetting of remuneration pursuant to § 1168 ABGB shall be excluded.
6. The client is obliged to obtain the written consent of AES Consulting GmbH before assigning or transferring contractual claims or other rights, whether for consideration or free of charge. AES Consulting GmbH shall not be obliged to give its consent to the assignment or transfer of contractual claims or other rights.
7. The client is obliged to provide labelling in accordance with point V. 1.
XI. Confidentiality
1. The client and AES Consulting GmbH mutually undertake to maintain secrecy with regard to all confidential information arising from their contractual relationship.
2. Confidential information is all documents, data, trade and business secrets and technical knowledge which are/will be made accessible to each other or become accessible in the course of the fulfilment of the order. This does not include documents, data and technical knowledge that were already publicly known at the time they became accessible.
3. The client and AES Consulting GmbH undertake to impose a similar duty of confidentiality on those involved in the execution of the contract, in particular employees, apprentices, trainees, temporary staff and subcontractors, who necessarily or in the course of the fulfilment of the contract gain knowledge of confidential information, and to take all appropriate measures to ensure the confidentiality of the confidential information. Insofar as information is passed on in this context, it shall be passed on as confidential information and may not be used for purposes other than the fulfilment of the contract.
4. Any utilisation of information, facts and data that are subject to confidentiality for purposes other than the fulfilment of the contract is expressly prohibited for both the client and AES Consulting GmbH and all persons involved in the execution of the contract.
5. The client and AES Consulting GmbH shall take all appropriate precautions for the protection and secure storage of all information, facts and data, as well as with regard to trade or business secrets that have become known in connection with the fulfilment of the contractual obligations.
XII. Dates and deadlines
1. Unless expressly agreed as binding, performance deadlines shall only apply as a guideline and shall remain non-binding. Binding deadline agreements must be recorded in writing or confirmed in writing by AES Consulting GmbH.
2. If the performance of AES Consulting GmbH is delayed for reasons for which AES Consulting GmbH is not responsible, e.g. events based on force majeure and other unforeseeable events that cannot be averted by reasonable means or for reasons within the sphere of the client, the performance obligations shall be suspended for the duration and to the extent of the hindrance and the deadlines associated with the provision of the service shall be extended accordingly (suspension of progress).
XIII. Premature termination of contract
Ordinary termination
1. Unless otherwise contractually agreed, a contractual relationship concluded for an indefinite period may be terminated in writing by both the client and AES Consulting GmbH subject to one month’s notice to the end of each calendar month. The client shall in any case pay for services rendered and costs incurred up to the termination of the contractual relationship.
2. Services already commenced at the time of termination shall also be deemed to have been provided and invoiced to entrepreneurs as completed if the client waives the right to be provided with the rest of the service or to use it completely.
Extraordinary termination
1. In the event of good cause, the client and/or AES Consulting GmbH shall be entitled to terminate the contract without prior notice.
2. Important reasons which authorise AES Consulting GmbH to terminate the contract are:
– the continued breach of essential obligations by the client (e.g. payment of an amount due or his obligation to co-operate) despite a written warning with a grace period of 14 days;
– the existence of concerns regarding the client’s creditworthiness and if the client fails to make the (partial) payment requested in writing by AES Consulting GmbH within 14 working days;
– if the client fails to make requested advance payments despite a written grace period of 7 working days;
– the breach or violation of obligations by the client within the meaning of point IX;
– if the client uses the rights of use granted to him for services, documents, records, etc. contrary to the agreement or beyond the agreement, during an ongoing contractual relationship or after its termination, or misuses them for purposes that are obviously contrary to the objectives of the contract;
– Impossibility of performance of the service for reasons for which the client is responsible, or the delay or prevention of performance of the service by the client despite the setting of a grace period of 7 working days;
XIV. Digital communication
1. The client and the persons authorised to represent him expressly agree to AES Consulting GmbH contacting him by telephone, sending mails (e.g. e-mails, SMS) or faxes for advertising and (product, service, service) information purposes. This consent can be revoked at any time within the meaning of § 174 para. 4 TKG 2021 by e-mail to office@aes-consulting.at or by letter to AES Consulting GmbH, Taubstummengasse 13/5a, 1040 Vienna.
XV. Applicable law, place of jurisdiction
1. Austrian law shall apply with the exclusion of the IPRG and the UN Convention on Contracts for the International Sale of Goods.
2. The competent court in Vienna/Austria shall be responsible for the settlement of claims and any disputes arising from contracts with AES Consulting GmbH.
3. Should individual provisions of these GTC be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. In the case of contracts with entrepreneurs, the invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effects come closest to the economic purpose of the invalid or unenforceable provision. In the case of contracts with consumers, the invalid or unenforceable provision shall be replaced by the provision that is provided for consumers by law.