General Terms and Conditions

Fabrice Bendfeldt Network Consulting e.U.

Wimbergergasse 14-16/2/20, 1070 Vienna

1. VALIDITY
1.1. These General Terms and Conditions (“GTC”) govern the business relationship between Fabrice Bendfeldt Network Consulting e.U., owner Fabrice Bendfeldt MSc, (hereinafter referred to as: “FBNC”) and its client (hereinafter referred to as: “Client”) . They apply to all services offered by FBNC in the version valid at the time of the conclusion of the contract.
1.2. These terms and conditions shall also apply if the initiation of business takes place via means of distance communication. However, they apply exclusively to clients who are entrepreneurs within the meaning of the Consumer Protection Act. They do not apply to business relationships concluded with consumers within the meaning of the Consumer Protection Act. Persons who are to be regarded as consumers within the meaning of the Consumer Protection Act undertake to inform FBNC of this at the time of initiating business contact in order to enable FBNC to take account of their position as consumers by drawing up individual contracts.
1.3. The GTC are permanently available on FBNC’s website at https://www.fabricebendfeldt.com/terms and can be printed out from there. By commissioning FBNC, the Client accepts these GTC.
1.4. The contractual language is English.
1.5. FBNC provides its services exclusively on the basis of these terms and conditions. FBNC does not recognise any agreements to the contrary or agreements that deviate from these GTC. The mere performance of contractual obligations by FBNC does not constitute consent to terms and conditions that deviate from these GTC. These GTC shall apply as a framework agreement for all further legal transactions between FBNC and its client.
1.6. Agreements deviating from these GTC are only effective if FBNC has expressly agreed to them in writing in the individual case.

2. CONCLUSION OF CONTRACT
2.1. The type and scope of the service agreed and to be provided by FBNC proceeds in the following order:
– the order confirmation
– the offer including attachments,
– a written contract,
– these GTC.
2.2. Unless otherwise stated, FBNC’s offers are subject to confirmation with regard to all information given, including the fee.
2.3. Amendments and supplements to the order must be confirmed in writing by FBNC in order to be the subject of this contractual relationship. If an order confirmation contains changes compared to the offer, these will be deemed to have been approved by the client if the client does not object to the changes in writing within a maximum of 7 working days. Oral promises, ancillary agreements etc. that deviate from these GTC or other written declarations of intent, in particular those made by employees, subcontractors, deliverers, etc., shall in any case not be binding on FBNC.
2.4. FBNC undertakes to duly execute the order placed with it in accordance with the generally recognised rules and the latest developments and the principles of economic efficiency. However, FBNC shall not be bound by the client’s instructions if these would result in the incorrectness of the content of the service to be provided. FBNC shall draw the client’s attention to such a circumstance as soon as this becomes apparent to it.
2.5. The client is obliged to provide all documents, access data, etc. that are necessary for the proper execution of the order placed and that are expressly requested by FBNC in good time, and guarantee their correctness. The client shall therefore be obliged to cooperate in this respect. Likewise, the client shall be obliged to ensure the correctness, completeness and integrity of the data provided by it. Any disadvantages or delays resulting from incorrect or incomplete information or data shall be borne by the client.
2.6. Dates and deadlines shall only become binding upon written confirmation. Compliance with dates and deadlines always presupposes that the client has fully complied with its duties and obligations, in particular its duty to cooperate. If binding dates or deadlines are delayed due to circumstances that are not within the sphere of influence of FBNC, an extension of the deadlines shall be agreed.
2.7. The client expressly consents to communication between it and FBNC via the email address provided by it. When placing the order, the client shall appoint a responsible person (“responsible person”) to communicate and coordinate with FBNC and shall provide FBNC with the name, function and contact details, including email address, of this person. FBNC shall be entitled to handle all communication relating to the order placed exclusively with this person. The client shall immediately notify FBNC of any changes with regard to the person appointed or availability of this person or appoint a new responsible person as a substitute.
2.8. Unless otherwise agreed, FBNC shall not be bound by the client’s specifications with regard to working hours and place of work and may use other appropriately authorised persons or companies for the performance of the contract and place orders with them – within the scope of the agreed scope of services – on behalf and for the account of the client. This selection shall be made exclusively by FBNC. However, FBNC undertakes to inform the client in advance of any such commissioning.

3. SCOPE OF SERVICES AND FEE
3.1. The fee amount shall be based on the offer made by FBNC to the client, and subsidiarily on FBNC’s price lists valid at the time of delivery or provision of the service. FBNC shall be entitled, at its own discretion, to offer a fixed price for the entire service provided (flat fee) or bill by the hour.
3.2. Cost estimates, offers and presentations are always subject to change with regard to both the price quotations contained therein and the product description and, in the absence of an express written agreement to the contrary, are subject to charges.
3.3. All fees and remunerations are understood to be ex FBNC’s place of business and exclusive of VAT and any legal transaction fees and cash expenses. The fees shall only include costs for transport, insurance, installation or assembly if these are specifically stated in the offer; such costs shall be invoiced separately to the client.
3.4. Prices are always quoted in EUR.

4. TERMS OF PAYMENT
4.1. FBNC is not obliged to perform services in advance. FBNC shall in particular be entitled to demand advance payment or payment on account and to make its performance of service dependent on this payment or to wait for such payment. FBNC shall also be entitled, at its own discretion, to provide partial services and partial deliveries, insofar as these are reasonable and economical for the client, and to issue partial invoices for them. In any case, the client agrees to pay monthly partial invoices.
4.2. Unless otherwise agreed, all invoice amounts shall be paid within 14 days of the invoice date without any deductions or expenses. In the case of non-cash payment, a bank transfer must be made to the account specified in the invoice in a timely manner so that the invoice amount is received in the specified bank account of FBNC on the due date at the latest. Payments by the client shall only be deemed to have been made upon receipt in FBNC’s business account. Payments received shall first pay off compound interest, interest and ancillary charges, then the outstanding capital, starting with the oldest debt. If the client has to make payment in instalments, it is agreed that in the event of late payment of even one instalment, all outstanding payments will become due immediately.
4.3. In the event of default in payment, including partial payments, agreed payment terms shall lose their validity and all invoices submitted shall become due for payment immediately. If the client is in default of payment, FBNC shall not be obliged to send the client a reminder. However, if FBNC sends the client a payment reminder, FBNC shall be entitled to charge expenses per reminder in accordance with § 458 of the Austrian Commercial Code, but in any case in the amount of EUR 10.00 per reminder. In addition, all costs incurred for sending reminders and for payment collection, for the appropriate legal prosecution as well as the costs of engaging a lawyer in accordance with the Lawyers’ Fees Act (RATG) and the General Fee Criteria for Lawyers (AHK), as amended from time to time, will have to be reimbursed. The assertion of further, legally admissible claims shall remain unaffected.
4.4. Without prejudice to any other rights, FBNC shall be entitled to suspend its own services for the period of the delay in payment and to make the resumption of services dependent on a reasonable advance payment by the client.
4.5. The client expressly agrees to invoices being sent by email pursuant to § 11 para 2 of the Value Added Tax Act.
4.6. Offsetting any counterclaims against claims of FBNC is excluded. This shall not apply if the claim has been expressly recognised in writing or has been legally established by a court.

5. RETENTION OF TITLE
5.1. The delivery of goods and items by FBNC to the client shall be subject to retention of title. These shall remain the property of FBNC until payment in full, including all ancillary charges. FBNC is entitled to indicate its ownership externally, for example by means of labels.
5.2. During the period of retention of title, the client undertakes to store the items with the care of a prudent businessman and to insure them adequately against all insurable risks (in particular against damage by fire, water, theft and vandalism at replacement value).
5.3. The goods subject to retention of title may neither be pledged nor assigned by way of security. A resale is only permissible if FBNC has been informed of this in good time beforehand, stating the name or the company and the exact address of the buyer, and FBNC has given its consent to the sale. If such consent is given, the purchase price claim shall already now be deemed to have been assigned to FBNC and FBNC shall accept such assignment. FBNC shall be entitled to notify the buyer of this assignment at any time. In the event of any seizure or other claim by third parties, the client shall be obliged to immediately take all measures to obtain the cessation of execution in respect of such items, to assert FBNC’s right of ownership and to notify FBNC without delay.
5.4. In the event of reclaiming or taking back the item subject to retention of title, this shall only constitute a rescission of the contract if FBNC expressly declares such rescission and an important reason exists.
5.5. The Client shall bear the full risk for the reserved goods, in particular for the risk of destruction, loss or deterioration.

6. USE OF WORKS
6.1. For work results that constitute works within the meaning of the Austrian Copyright Act or for which no ownership under property law can be established, the provisions on retention of title pursuant to Section 5 shall apply mutatis mutandis to the granting of exploitation and work use rights or a work use authorization (“retention of title under copyright law”). Granting of any rights of use by the client shall therefore only come into effect upon full payment of the fee.
6.2. Irrespective of whether the work result produced by FBNC (plans, sketches, expert opinions, documentation, presentations, databases, software, etc.) constitutes a work in the sense of copyright, the client shall therefore only be granted the right to use the work result for the contractually stipulated purpose on condition of full performance of the contract on its part.
6.3. Unless otherwise agreed in individual cases, FBNC shall grant the client a non-exclusive right of use to the work results, which shall, however, not be limited in terms of content and time.
6.4. In the absence of any other agreement, FBNC shall be entitled to use the work results or copies or parts thereof for its own reference purposes, under the client’s name, provided that this does not seriously impair legitimate interests of the client.

7. WARRANTY
7.1. FBNC warrants that the subject matter of the contract or the service provided by it has the expressly stipulated properties, for which the order confirmation is decisive. Verbal information and promises, brochures and advertising statements of any kind (in particular descriptions, information about quality, condition, composition and usability), information in manuals, catalogues, brochures, on websites and other advertising material are non-binding and subject to change and do not constitute a guarantee of a certain property.
7.2. Any warranty shall be void for errors, malfunctions or damage resulting from improper operation, changes made by the client, abnormal operating conditions, contamination with viruses or operating errors.
7.3. Defects and other complaints must be notified in writing and documented in detail without delay – at the latest, however, within seven days from the date of performance – otherwise the warranty right shall be forfeited. Hidden defects must be reported in writing and documented in detail immediately after their discovery.
7.4. The presumption of defectiveness according to § 924 of the Civil Code as well as the special recourse according to § 933b of the Civil Code are excluded by mutual agreement.
7.5. Replacement deliveries or rectification of defects shall not extend, suspend or interrupt the warranty period. The assertion of defects does not entitle the client to plead non-performance of the contract. In the event of a justified notice of defect, the client shall not be entitled to retain the entire amount of the gross fee, but only up to a part of the gross fee corresponding to the anticipated remedial work or damage.
7.6. In the case of warranty, improvement or replacement shall in any case have priority over price reduction or rescission. If the improvement is not carried out within a reasonable period of time, the client may, at his discretion, demand a reduction of the price or, if the suitability of the subject matter of the contract is considerably reduced, rescission of the contract.
7.7. The warranty period shall commence with the handover or completion of the subject matter of the contract and shall be six months.

8. LIABILITY
8.1. FBNC shall be liable without limitation for damages if intent can be proven against it.
8.2. FBNC shall in no case be liable for damages resulting from slight negligence as well as for consequential damages and pecuniary losses, for savings not achieved and loss of interest as well as for damages resulting from claims of third parties against the client. Bodily injuries are excluded from this.
8.3. In the event of proven gross negligence, FBNC shall be liable up to twice the amount of the agreed fee, provided that the damage exceeds EUR 500,00 in the individual case. The reversal of the burden of proof for fault shall not apply in any of these cases.
8.4. Claims for damages must be asserted in court within six months after the claimant has become aware of the damage, but at the latest within three years after the event giving rise to the claim, if the right is otherwise lost.
8.5. The Client undertakes to regularly back up data and programmes at intervals appropriate to the application, at least once a day, and thus to ensure that these can be restored with reasonable effort. Likewise, the client undertakes to keep its system environment and software products constantly up to date and to take suitable protective measures against threats (viruses, Trojans, malware, ransomware, third-party access or other data damage or loss). In the event of a loss of data for which FBNC is responsible, FBNC shall be liable for the recovery only to the extent of the expenditure incurred if the client has carried out the above measures in a suitable manner, in accordance with the latest developments.

9. DURATION AND TERMINATION
9.1. Unless expressly agreed otherwise, the contract shall enter into force upon signature. The contractual relationship ends with the completion of the service provision.
9.2. Insofar as the subject matter of the contract is the ongoing provision of services by FBNC and the contractual relationship therefore does not end through the performance of work, the contractual relationship may be terminated by either party by giving 14 days’ notice in writing (ordinary termination).
9.3. However, in the event of good cause, each of the parties shall be entitled to extraordinary termination with immediate effect. Such good cause, which entitles the client to rescind the contract, exists in particular,
9.3.1. if FBNC acts contrary to essential interests of the client or violates other contractual duties of care, loyalty or confidentiality;
9.3.2. if an agreed period of performance accepted by FBNC is exceeded despite a reminder and setting a reasonable grace period due to the fault of FBNC;
An important reason entitling FBNC to rescind the contract exists in particular,
9.3.4. in the event of a breach of material contractual provisions by the client;
9.3.5. if the client, despite being requested to do so and having been granted a reasonable grace period of at least 14 days, does not provide any, incomplete, incorrect or insufficient documents, data or access and these are necessary for FBNC to provide the service owed under the contract;
9.3.6. if the client is in default with the payment of a (partial) invoice despite a reminder and setting a grace period of at least 14 days; this shall also apply mutatis mutandis if it concerns outstanding payments from another contractual relationship between FBNC and the client;
9.3.7. if the client is in default with the acceptance of the service offered by FBNC in accordance with the contract, despite a reminder and setting a grace period of at least 14 days;
9.3.8. if circumstances originating from the sphere of the client delay or impede the performance of the service by FBNC for a period of more than 2 weeks and the client does not take any remedial action despite being requested to do so by FBNC;
9.3.9. if the client requests FBNC to behave in a manner that is unlawful, unethical or immoral.
Insofar as a request or reminder with grace period is provided for under this point of the contract, then such a request or reminder must be sent in writing by registered letter to the other party, threatening the exercise of the right of withdrawal.
9.4. In the event of justified extraordinary termination by the client, FBNC shall be entitled to the remuneration for the services provided up to that point. The services rendered up to that point shall be invoiced in accordance with the contractual provisions. In the event of justified extraordinary termination by FBNC, the latter shall retain the right to the agreed fee. The same shall also apply in the event of unjustified withdrawal by the client.

10. SECRECY, DATA PROTECTION
10.1. The contracting parties are obliged to maintain secrecy about all facts and information of which they become aware in connection with the implementation of this contract, to refrain from disclosing them to third parties and to ensure that this information cannot come to the knowledge of unauthorised third parties, in particular competitors.
10.2. The confidential information protected by this contract includes in particular data, know-how, business reports, customer lists and lists of business partners, price lists and calculation bases, business strategies or preparations and all ideas which the contracting parties entrust to each other, whether orally or in writing, or make available in electronic or other form.
10.3. Furthermore, even after the end of the contract, the contracting parties mutually undertake not to enable or promote the use of confidential information obtained from the other contracting party by third parties.
10.4. FBNC undertakes to use data received from the client exclusively for the purpose of providing the contractually owed service, to maintain data secrecy and to implement the legally prescribed security measures in accordance with the GDPR and the Data Protection Act of 2018 in order to ensure (taking into account the status of technical options and economic feasibility) that the data is protected against destruction, loss or unauthorised access.

11. JURISDICTION AND APPLICABLE LAW
11.1. For disputes arising from this contractual relationship, its initiation or dissolution, the exclusive jurisdiction of the court having local and subject-matter jurisdiction for the registered office of FBNC at the time of the conclusion of the contract is agreed. However, FBNC shall be entitled, at its own discretion, to prosecute the client alternatively at its general place of jurisdiction.
11.2. This contractual relationship shall be governed exclusively by Austrian law, to the exclusion of private international law and the UN Convention on Contracts for the International Sale of Goods, even if the order is executed abroad.

12. FINAL PROVISIONS
12.1. FBNC reserves the right to amend these GTC at any time. The amendment will become effective vis-à-vis the client if the client accepts the GTC without objection when placing a new order with FBNC. The GTC in force at the time of the conclusion of the contract shall therefore apply in each case.
12.2. The client is obliged to notify FBNC without delay of any changes in its company data, insofar as they are of significance for the performance of the contract or invoicing. If the notification is not effected, declarations shall be deemed to have been received even if they were sent to the last notified address.
12.3. Amendments and supplements to these terms and conditions and all concluded contracts always require the written consent of both parties. This also applies to the waiver of the written form requirement.
12.4. Should individual provisions be or become wholly or partially invalid or unenforceable, this shall not affect the validity of the remaining provisions. In place of the invalid or unenforceable provisions or to fill the gap, an appropriate provision shall be made which comes as close as possible to what the parties would have reasonably intended if they had considered this point when concluding the contract. The same applies in the event that these terms and conditions contain a loophole.
12.5. It is noted that the parties are independent contractors and that no employment relationship is established between them.

Vienna, on 10/02/2022