Allgemeine Geschäftsbedingungen

This is a non-binding courtesy translation. The legally binding version is the German original: View German version

As of: March 2021 · Download the General Terms and Conditions as PDF

1. General Principles / Scope

1.1. Gerlinde Oberndorfer, MTD provides her services exclusively on the basis of these General Terms and Conditions. These also apply to all future business relationships, even if no express reference is made to them. The version in force at the time the contract is concluded shall be authoritative in each case.

1.2. Conflicting General Terms and Conditions of the Client are invalid, even if known, unless they are expressly acknowledged in writing by Gerlinde Oberndorfer, MTD.

1.3. In the event that individual provisions of these General Terms and Conditions are and/or become invalid, this shall not affect the validity of the remaining provisions or of the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision that most closely reflects its intent and economic purpose.

1.4. The offers of Gerlinde Oberndorfer, MTD are subject to change and non-binding.

2. Scope of the Assignment / Representation

2.1. The scope of a specific assignment is agreed contractually on a case-by-case basis by means of an offer and an order confirmation. Subsequent changes to the content of the services require the written consent of Gerlinde Oberndorfer, MTD.

2.2. All services of Gerlinde Oberndorfer, MTD (in particular offers, concepts, drafts, proposals, graphics, sketches, animations, image edits, colour proofs, reports, schedules, service descriptions and electronic data) must be reviewed and approved by the Client within 10 working days of delivery. If no response is given within ten days, this shall be deemed approval by the Client.

2.3. The services of Gerlinde Oberndorfer, MTD are divisible.

2.4. Gerlinde Oberndorfer, MTD is entitled, at her sole discretion, to carry out the assignment herself, to make use of third parties as vicarious agents in providing the contractual services, and/or to have such services substituted ("third-party service").

2.5. Third parties are engaged, at the choice of Gerlinde Oberndorfer, MTD, either in her own name or in the name of the Client, but in every case for the account of the Client. Gerlinde Oberndorfer, MTD will select third parties carefully and ensure that they possess the necessary professional qualifications.

2.6. Where services are assigned to third parties by way of substitution, Gerlinde Oberndorfer, MTD is liable only for the careful selection of the third party, but not for the performance or defective performance of the service.

3. Client's Duty to Provide Information and Cooperate

3.1. The Client shall ensure that the organisational framework conditions at its place of business during the performance of the assignment permit work that is as undisturbed as possible and conducive to the rapid progress of the consulting process.

3.2. The Client shall ensure that, even without any specific request, all documents necessary for the fulfilment and execution of the assignment are submitted to Gerlinde Oberndorfer, MTD in good time and that she is informed of all events and circumstances that are relevant to the execution of the assignment. This also applies to all documents, events and circumstances that only become known during the work of Gerlinde Oberndorfer, MTD. The Client shall bear the expense arising from the fact that work has to be repeated or is delayed as a result of incorrect, incomplete or subsequently changed information.

3.3. The Client is further obliged to check the documents provided for the execution of the assignment (photos, logos, etc.) for any copyright, trademark rights or other third-party rights. The Client warrants that the documents provided to Gerlinde Oberndorfer, MTD are free of third-party rights and indemnifies and holds Gerlinde Oberndorfer, MTD harmless in this respect; the Client shall compensate Gerlinde Oberndorfer, MTD for all disadvantages arising to her from claims by third parties.

3.4. The Client shall ensure that its employees and the legally provided and, where applicable, established employee representation (works council) are informed by Gerlinde Oberndorfer, MTD before the commencement of her work.

4. Safeguarding Independence

4.1. The contracting parties undertake to act with mutual loyalty.

4.2. The contracting parties mutually undertake to take all measures suitable to prevent any risk to the independence of the third parties engaged and the employees of Gerlinde Oberndorfer, MTD. This applies in particular to offers by the Client of employment or of the assumption of assignments on their own account.

5. Protection of Intellectual Property

5.1. All services of Gerlinde Oberndorfer, MTD, including all documents, and also individual parts thereof, remain the property of Gerlinde Oberndorfer, MTD and may be reclaimed by her at any time – in particular upon termination of the contractual relationship.

5.2. The copyrights to all results created by Gerlinde Oberndorfer, MTD and her employees and engaged third parties (in particular offers, concepts, drafts, graphics, sketches, animations, image edits, colour proofs, reports, schedules, service descriptions and electronic data) remain with Gerlinde Oberndorfer, MTD. Upon full payment of the invoiced fee, the Client obtains a licence to use the work that is limited to the agreed purpose, the agreed duration and the territory of the Republic of Austria; prior to full payment, use is permitted only subject to revocation at any time. In particular, the Client is not entitled to reproduce and/or distribute documents without the express written consent of Gerlinde Oberndorfer, MTD. Under no circumstances shall an unauthorised reproduction/distribution give rise to any liability of Gerlinde Oberndorfer, MTD – in particular for the accuracy of the documents – towards third parties.

5.3. Modifications or adaptations of services of Gerlinde Oberndorfer, MTD, such as in particular their further development by the Client or by third parties acting on its behalf, are permitted only with the express consent of Gerlinde Oberndorfer, MTD and – insofar as the services are protected by copyright – of the author.

5.4. Any use of services of Gerlinde Oberndorfer, MTD that goes beyond the originally agreed purpose and scope of use requires the consent of Gerlinde Oberndorfer, MTD, regardless of whether such service is protected by copyright. For this, Gerlinde Oberndorfer, MTD and the author are entitled to separate reasonable remuneration.

5.5. A breach by the Client of the aforementioned provisions entitles Gerlinde Oberndorfer, MTD to immediately terminate the contractual relationship prematurely and to assert other statutory claims, in particular for injunctive relief and damages.

6. Presentations

6.1. For participation in presentations, Gerlinde Oberndorfer, MTD is entitled to a reasonable fee which, in the absence of an agreement, covers at least the entire personnel and material expenses of Gerlinde Oberndorfer, MTD for the presentation as well as the costs of all third-party services.

6.2. If Gerlinde Oberndorfer, MTD does not receive an assignment after the presentation, all services of Gerlinde Oberndorfer, MTD, in particular the presentation documents and their content, remain her property, as do all exploitation rights. The (potential) Client is not entitled to use or otherwise exploit these – in whatever form; rather, the documents must be returned to Gerlinde Oberndorfer, MTD without delay. Passing on presentation documents to third parties as well as their publication, reproduction, distribution or other exploitation is not permitted without the express consent of Gerlinde Oberndorfer, MTD.

6.3. Likewise, the (potential) Client is prohibited from further using the ideas and concepts introduced in the course of the presentation, irrespective of whether the ideas and concepts obtain copyright protection. By paying the presentation fee, the (potential) Client acquires no exploitation or usage rights whatsoever to the presented services.

6.4. Gerlinde Oberndorfer, MTD is in any case entitled to use presented ideas and concepts elsewhere.

7. Warranty

7.1. Gerlinde Oberndorfer, MTD warrants that her services comply with standard industry practice.

7.2. The Client must inspect the services of Gerlinde Oberndorfer, MTD without delay after delivery and notify any defects in writing within 10 working days.

7.3. The reversal of the burden of proof under Section 924 of the Austrian Civil Code (ABGB) is waived by mutual agreement. The existence of the defect at the time of delivery, the time the defect was identified, and the timeliness of the notice of defects must be proven by the Client.

8. Liability, Damages

8.1. Gerlinde Oberndorfer, MTD is liable to the Client for damages – with the exception of personal injury – only in the case of gross fault (intent or gross negligence). This applies mutatis mutandis to damages attributable to third parties engaged by Gerlinde Oberndorfer, MTD.

8.2. Gerlinde Oberndorfer, MTD assumes no liability for the timeliness, correctness, completeness or quality of the data and information provided by the Client, nor for the expert opinions, analyses and reports based thereon.

8.3. Claims for damages by the Client may be asserted in court only within six months of becoming aware of the damage and the party causing it, but at the latest within three years of the event giving rise to the claim.

8.4. The Client must in each case provide proof that the damage is attributable to fault on the part of Gerlinde Oberndorfer, MTD.

8.5. Insofar as Gerlinde Oberndorfer, MTD provides services with the assistance of third parties and warranty and/or liability claims arise against these third parties in this connection, Gerlinde Oberndorfer, MTD assigns these to the Client. In this case, the Client shall primarily hold these third parties liable.

9. Confidentiality / Data Protection

9.1. Gerlinde Oberndorfer, MTD and the Client undertake to maintain secrecy regarding all business matters that come to their knowledge, in particular trade and business secrets as well as any information they obtain about the nature, scope and practical activities of the respective contracting partner.

9.2. Gerlinde Oberndorfer, MTD is released from the duty of confidentiality towards any assistants and representatives she engages. However, she must fully impose the duty of confidentiality on them.

9.3. The duty of confidentiality extends without limitation beyond the end of this contractual relationship.

9.4. Gerlinde Oberndorfer, MTD is entitled to process personal data entrusted to her within the scope of the purpose of the contractual relationship. The Client warrants to Gerlinde Oberndorfer, MTD that all necessary measures have been taken for this purpose, in particular those within the meaning of the Data Protection Act, such as declarations of consent by the data subjects.

9.5. Gerlinde Oberndorfer, MTD refers to her privacy policy on this website.

10. Organisation of Events

In the event that Gerlinde Oberndorfer, MTD is commissioned to organise an event, the following provisions additionally apply, which shall prevail over the aforementioned provisions in the event of a conflict:

10.1. Relationship between Contractor and Client

10.1.1. Gerlinde Oberndorfer, MTD is obliged to provide her services in accordance with the principles of the duty of care of a prudent business person, having regard to the interests of the Client.

10.2. Service – Scope of Services

10.2.1. The scope of the contractual services and the fee (remuneration) result from written agreements. Ancillary agreements or amendments that change the scope of the contractual service or the price require an express written agreement of the contracting parties.

10.2.2. Irrespective of the agreed concept or support fee, the Client shall provide Gerlinde Oberndorfer, MTD with a budget framework in a binding and written form.

10.2.3. In important and justified cases, Gerlinde Oberndorfer, MTD is entitled, in coordination with the Client, to change parts of the event programme in deviation from the service description. This shall be recorded without delay and by mutual agreement in writing. In addition, Gerlinde Oberndorfer, MTD is entitled to change the event programme without coordination with the Client, provided that the change brooks no delay and is necessary for the smooth running of the event.

10.2.4. Insofar as Gerlinde Oberndorfer, MTD is to perform services on behalf and for the account of the Client, this must be expressly recorded in writing. This concerns in particular acts under public law (e.g. registration of the event with the competent authority) or private law, the rental of premises, the conclusion of contracts in the catering sector, as well as the conclusion of contracts with artists, suppliers and subcontractors.

10.2.5. In this case, at the Client's request and for a fee, as fixed in the fee agreement, Gerlinde Oberndorfer, MTD obtains cost estimates from suitable suppliers and subcontractors. Unless otherwise agreed, the selection of the suppliers and subcontractors proposed by Gerlinde Oberndorfer, MTD is made by the Client, or, if the Client so wishes, by Gerlinde Oberndorfer, MTD.

10.3. Taxes and Financial Settlement

10.3.1. The taxes, fees, charges and copyright royalties (AKM, etc.) arising from the holding of the event shall be borne by the Client.

10.3.2. The amounts necessary for holding the event shall be made available to Gerlinde Oberndorfer, MTD by the Client in advance. On request, Gerlinde Oberndorfer, MTD will set up a separate account for these amounts.

10.3.3. The final invoice must be issued by Gerlinde Oberndorfer, MTD in writing at the time agreed by both contracting parties.

10.4. Insurance

10.4.1. The selection, conclusion and costs of any adequate event organiser's liability insurance shall be borne by the Client.

11. Fee

11.1. Unless otherwise agreed, the fee claim of Gerlinde Oberndorfer, MTD arises in accordance with the progress of the work, i.e. in proportion to the degree of completion. Gerlinde Oberndorfer, MTD is entitled to demand advances to cover her expenses. Gerlinde Oberndorfer, MTD is entitled to issue interim invoices in line with the progress of the work and to demand partial payments corresponding to the respective progress. The fee is due in each case upon issuance of the invoice by the Contractor.

11.2. For the commissioned services and the compensation for the copyright and trademark usage rights, the fee is agreed in advance between Gerlinde Oberndorfer, MTD and the Client. The agreed fee is exclusive of statutory value added tax. In case of doubt, a reasonable fee is owed.

11.3. All services of Gerlinde Oberndorfer, MTD that are not expressly covered by the agreed fee shall be remunerated separately. All out-of-pocket expenses incurred by Gerlinde Oberndorfer, MTD (e.g. travel expenses, travel costs, typesetting and printing costs, photography costs, hospitality expenses, third-party fees, room rentals, rentals for technical equipment, courier expenses, etc.) are not included in the agreed fee and must be reimbursed by the Client. Additional costs and expenses of payment transactions (exchange charges, etc.) shall always be borne by the Client.

11.4. Gerlinde Oberndorfer, MTD will issue an invoice with all legally required features in each case. Gerlinde Oberndorfer, MTD is entitled to send invoices to the Client also in electronic form. The Client expressly agrees to the sending of invoices in electronic form.

11.5. Agreed consulting and/or training appointments may be cancelled by the customer in writing free of charge up to 80 days before the scheduled appointment. In the event of a cancellation in the period from 60 to 79 days before the scheduled appointment, the customer must pay 30% of the estimated fee; between 59 and 40 days, 50% of the estimated fee must be paid. In the event of a cancellation made less than 40 days before the scheduled appointment, the customer must pay the entire estimated fee. Section 1168 of the Austrian Civil Code (ABGB) is expressly waived.

11.6. Should Gerlinde Oberndorfer, MTD be unable to provide the agreed service at the agreed time as a result of force majeure (e.g. illness on a workshop date), the service will be made up at a later time to be agreed by mutual consent. If such consent cannot be reached, 20% of the total fee to be paid becomes due. Gerlinde Oberndorfer, MTD does not assume any costs (e.g. travel expenses) that arise to the Client in this connection.

11.7. Cost estimates by Gerlinde Oberndorfer, MTD are non-binding. If it is foreseeable that the actual costs will exceed those estimated in writing by Gerlinde Oberndorfer, MTD by more than 15%, Gerlinde Oberndorfer, MTD will notify the Client of the higher costs. The cost overrun shall be deemed approved by the Client unless the Client objects in writing within three working days of this notification and simultaneously states more cost-effective alternatives.

11.8. For all work of Gerlinde Oberndorfer, MTD that is not brought to execution by the Client for whatever reason, Gerlinde Oberndorfer, MTD is entitled to the agreed remuneration. The set-off provision of Section 1168 of the Austrian Civil Code (ABGB) is waived by mutual agreement.

11.9. In the event of non-payment of interim invoices, Gerlinde Oberndorfer, MTD is released from her obligation to provide further services. However, this does not affect the assertion of further claims resulting from the non-payment.

12. Payment, Retention of Title

12.1. The invoices of Gerlinde Oberndorfer, MTD are due immediately upon issuance without deduction. In the event of late payment, default interest at the rate of 8% p.a. above the base interest rate published by the ECB shall be deemed agreed. Delivered goods remain the property of Gerlinde Oberndorfer, MTD until full payment.

12.2. The Client undertakes to bear all costs and expenses associated with collecting the claim, such as in particular collection charges or other costs necessary for appropriate legal action. This shall in any case include the costs of two reminder letters at customary market rates as well as one reminder letter from a lawyer engaged with the collection. The assertion of further-reaching rights and claims remains unaffected thereby.

12.3. In the event of the Client's default in payment, Gerlinde Oberndorfer, MTD may immediately call due the fee for all services and partial services rendered under other contracts concluded with the Client. Gerlinde Oberndorfer, MTD is not obliged to provide further services until the outstanding amount has been settled. If payment in instalments has been agreed, Gerlinde Oberndorfer, MTD reserves the right, in the event of non-timely payment of partial amounts or ancillary claims, to demand immediate payment of the entire outstanding debt (acceleration/loss of the benefit of time).

12.4. The Client is not entitled to set off its own claims against claims of Gerlinde Oberndorfer, MTD, unless the Client's claim has been acknowledged in writing by Gerlinde Oberndorfer, MTD or established by a court.

13. Duration of the Contract

13.1. This contract ends, in principle, upon completion of the services.

13.2. Notwithstanding the above, the contract may be terminated at any time by either party for good cause without observing any notice period. Good cause shall be deemed to exist in particular,

• if a contracting party breaches material contractual obligations, or
• if agreed partial payments are not paid by the Client at the due date, or
• if insolvency proceedings are opened over the assets of a contracting party or the petition for bankruptcy is dismissed for lack of assets to cover the costs.

14. Final Provisions

14.1. The contracting parties confirm that they have made all statements in the contract conscientiously and truthfully, and undertake to notify each other of any changes promptly.

14.2. Amendments to the contract and to these General Terms and Conditions must be made in writing; the same applies to any waiver of this requirement of written form. There are no oral ancillary agreements.

14.3. This contract is governed by substantive Austrian law, to the exclusion of the conflict-of-law rules of private international law. The place of performance is the place of the professional establishment of Gerlinde Oberndorfer, MTD. For disputes, the court with subject-matter jurisdiction in Salzburg shall have jurisdiction.