General Terms and Conditions

These General Terms and Conditions ("Terms") apply to all agreements between Markus Nissl Consulting GmbH, Siegesplatz 17/1/15, 1220 Vienna, Austria, FN 596485i, Commercial Court of Vienna (the "Contractor"), and its business customers (the "Client"; together the "Parties"). These Terms apply exclusively to business with entrepreneurs within the meaning of § 1(1)(1) of the Austrian Consumer Protection Act (KSchG). The Client warrants that it is such an entrepreneur.

The General Part (A) applies to every contract. Parts B to G apply in addition, according to the content of the service agreed. Several parts may apply side by side. In case of doubt the more specific part prevails. The designation used in the offer is not a precondition for a part to apply.

Separate terms apply to the Contractor's own products. They are not covered by these Terms.

These Terms and Conditions are made in German and English. In case of discrepancies between the two versions, the German version shall prevail. Any and all liability on the part of Markus Nissl Consulting GmbH for any deviations in content or mistranslations is excluded. The German version is published at /agb.

A. General Part

1. Scope

1.1 These Terms are binding for all present and future business with the Contractor, even where they are not expressly referred to, unless otherwise agreed in writing.

1.2 The Contractor does not accept deviating terms of the Client, even where they are communicated, unless the Contractor expressly agrees to their application in text form. Acts of performance do not constitute such agreement.

1.3 The version in force at the time the contract is concluded applies. The Contractor notifies changes to these Terms for existing continuing obligations in text form. They are deemed approved if the Client does not object within six weeks of receipt; the notification points out this consequence and the right to object. In case of objection, either Party may terminate the affected continuing obligation extraordinarily within one month.

2. Conclusion of contract and order of precedence

2.1 The Contractor's offers are non-binding unless expressly limited in time or designated as binding. A contract is concluded by the Contractor's order confirmation in text form, by acceptance of an offer designated as binding, or by the Contractor beginning performance with the Client's knowledge.

2.2 Where these Terms require written or text form, email or another legible, permanently storable declaration suffices, unless a handwritten signature is expressly required.

2.3 In case of conflict the following order applies: (1) an individually negotiated agreement, (2) the accepted offer or order confirmation, (3) the service description, SLA and data processing agreement, each within its scope, (4) these Terms. Statements on the website become part of the contract only insofar as they are included in the offer.

2.4 A free introductory conversation does not create a contract.

3. Types of service

3.1 The subject of the contract is the service described in the offer or the order confirmation.

3.2 Parts B to G apply according to the content of that service:

• Part B for training and workshops;
• Part C for written reviews and audits;
• Part D for services billed by time;
• Part E for reserved time or service contingents;
• Part F for the development, production or substantial extension of software or other products for the Client;
• Part G where the Contractor operates, hosts or provides the Client's systems, applications or data in an environment for which the Contractor is responsible.

3.3 Where several types of service are agreed, the relevant parts apply side by side. Where they overlap, the more specific part prevails.

3.4 Unless a work result or a specific outcome is expressly agreed, the Contractor owes diligent activity. The Contractor does not owe a specific economic, technical or organizational outcome. The business decision remains with the Client.

3.5 Deadlines are binding only if expressly designated as binding. Otherwise they are target dates.

4. Performance

4.1 The Contractor performs the service according to the state of the art and with the care of a prudent businessperson. Unless otherwise agreed, the Contractor determines the place, means and persons employed. The Contractor may engage suitable third parties and remains responsible for performance in accordance with the contract.

4.2 Unless expressly agreed, the following are not owed: legal and tax advice, documentation beyond the agreed scope, training, maintenance, permanent availability, accessible design, penetration tests, and the procurement of third-party licenses.

4.3 The Contractor is not liable for services of third parties, in particular cloud services, models, standard software, registers and authorities, unless the Contractor has expressly assumed their selection or operation.

4.4 If the Contractor establishes that the agreed service is factually or legally impossible, the Contractor notifies this without delay in text form. The Client has 14 days to create the conditions for possible performance. If it fails to do so, the Contractor may refuse the affected service or withdraw from the affected order. If the impossibility results from a circumstance within the Client's sphere, the services rendered and expenses incurred until then are to be paid.

5. Cooperation and default

5.1 The Client cooperates in the performance to the extent required for the progress of the work. In particular, the Client provides the required information, documents, data, access, approvals and test data in good time, correctly and completely, names a contact person with decision-making authority, and takes the decisions requested of it within a reasonable period.

5.2 The Client warrants that content, data, trademarks and materials it provides may be used free of third-party rights. The Client indemnifies and holds the Contractor harmless in this respect, unless the Contractor is itself at fault.

5.3 Delays and additional effort caused by missing, late or defective cooperation are the Client's responsibility. Binding deadlines shift accordingly. The Contractor may bill the additional effort at the agreed rates.

5.4 Declarations, approvals and decisions of the Client that the Contractor needs to continue the service are to be made within 14 days of receipt. If the Client fails to do so, the Contractor sets a grace period of seven days. After the grace period expires without result:

• the Client is in default of cooperation;
• the Contractor may suspend the service, adjust deadlines and bill the waiting time at the agreed rates;
• a change offer sent to the Client is deemed rejected; the scope agreed so far remains authoritative.

5.5 If the default of cooperation continues for a further 14 days despite notice of this consequence, the Contractor may terminate the affected order under § 1168 of the Austrian Civil Code (ABGB). Statutory claims to remuneration remain unaffected.

5.6 Silence does not constitute agreement to an extension of the scope of services or to an increase of the fee.

6. Fees and payment

6.1 The net prices in euro stated in the offer apply, plus statutory VAT. Ancillary costs, in particular travel, accommodation, third-party licenses, cloud and domains, are borne by the Client unless expressly included. Travel time counts as working time unless otherwise agreed.

6.2 The Contractor may issue partial invoices according to progress and reasonable advance payments, and may bill separable services separately.

6.3 Invoices are due within 14 days of receipt without deduction and free of charges, unless otherwise agreed. Payment is deemed made on receipt in the Contractor's account.

6.4 In case of late payment, the statutory default interest under § 456 of the Austrian Commercial Code (UGB) applies, as does the lump sum under § 458 UGB and compensation for further necessary collection costs. After a reminder and an unsuccessful grace period, the Contractor may suspend further services. Deadlines shift accordingly.

6.5 The Client may set off only undisputed or legally established claims. A right of retention exists only within the same contractual relationship.

6.6 As the benchmark for adjusting fees under continuing obligations, the Parties agree the Consumer Price Index 2020 of Statistics Austria. If this index is discontinued, the index designated by Statistics Austria as its successor takes its place. The base value is the index figure published for the month in which the contract began. The Contractor may adjust the fees once per calendar year by the change in the index since the last adjustment; the adjustment works in both directions. The Contractor notifies it to the Client in text form at least 30 days before it takes effect. If the increase exceeds ten percent of the fee last set, the Client may terminate the affected continuing obligation as of the date the increase takes effect.

6.7 Physical items handed over by the Contractor to the Client remain the Contractor's property until the fee agreed for them has been paid in full. Until then the Client keeps them with care and informs the Contractor without delay of any third-party access.

6.8 Online orders; Merchant of Record. Where the Contractor offers products through its online payment page, the order process is handled by its online reseller Paddle.com. In that case the purchase contract is concluded between the customer and Paddle.com Market Ltd., Judd House, 18-29 Mora Street, London EC1V 8BT, United Kingdom ("Paddle"), as Merchant of Record. Paddle collects the fee, remits VAT, issues the invoice and handles customer service and refunds. The service itself is provided by the Contractor. Paddle's buyer terms, as amended from time to time, apply in addition. Consumers within the meaning of the KSchG have a 14-day right of withdrawal for such contracts; details are governed by the Refund Policy. Paddle does not apply to contracts concluded directly with the Contractor.

7. Rights of use

7.1 All rights in the Contractor's pre-existing methods, tools, templates, components and know-how, and in open-source software (background IP), remain with the Contractor or the respective rights holders. Open-source software is subject to its respective license.

7.2 Unless Part F provides otherwise, after full payment for the respective service the Contractor grants the Client a simple, non-exclusive, non-transferable right to use the contractual work result for the Client's own business purpose presupposed by the contract. Editing, passing on, sublicensing and publication are owed only where expressly agreed. In case of doubt all rights remain with the Contractor; a grant of rights beyond the purpose presupposed by the contract is not presumed.

7.3 All grants of rights under this clause are subject to the condition precedent that the Client has paid the fee agreed for the affected service in full. Before this condition is met, the Client acquires no rights in the work result. If the Contractor permits use before then, this is revocable and creates no acquisition of rights; revocation is declared in text form and takes effect on receipt.

7.4 The Client grants the Contractor the simple rights of use in the Client's materials that are required to perform the contract.

8. Confidentiality and loyalty

8.1 The Parties undertake to keep all confidential information of the other Party secret and to use it only to perform the contract. This obligation does not apply to information that (a) was already lawfully known to the recipient, (b) is or becomes publicly known without breach of contract, (c) was lawfully obtained from third parties, or (d) must be disclosed by law or official order.

8.2 The Parties impose this obligation on their employees and agents. It continues for five years after the end of the contract, unless a longer statutory obligation applies. On request, confidential documents are returned or deleted, unless retention obligations stand in the way.

8.3 If a Party culpably breaches its obligations under clause 8.1, it pays the other Party, for each breach concerning material confidential information, a contractual penalty of EUR 20,000 independent of proof of damage. Several breaches based on the same event count as one breach. The total of contractual penalties forfeited under this clause is limited to EUR 100,000; the limit does not apply in case of intent. The court's right of mitigation under § 1336(2) ABGB is not excluded. Compensation for damage exceeding the contractual penalty remains reserved; contractual penalties paid are credited against it.

8.4 The Parties undertake mutual loyalty. During the term of the contract and for twelve months after its end, they refrain from soliciting and employing, including through third parties, employees of the other Party who took part in performing the service. Public job advertisements and unsolicited applications remain permitted. A Party in breach pays liquidated damages equal to one year's remuneration of the employee concerned.

8.5 The Contractor may name the Client as a reference, provided no confidential content is disclosed. The Client may prohibit this in text form; from receipt, no further naming takes place.

9. Data protection

9.1 Each Party fulfills the obligations of its own area of responsibility under data protection law. Unless otherwise agreed, the Client is the controller for the personal data made available to the Contractor.

9.2 Where the Contractor processes personal data on behalf of the Client, the Parties conclude a data processing agreement under Art. 28 GDPR before processing begins. Without this agreement the Contractor does not begin such processing. If its conclusion is delayed, the affected start of service shifts.

9.3 Obligations under Regulation (EU) 2024/1689 are allocated in the offer where the Contractor acts as provider or deployer of a high-risk AI system or of a system subject to transparency obligations under Art. 50.

10. Use of AI tools

10.1 The Contractor may use AI-supported tools to perform the service, provided agreed confidentiality, data protection or security requirements are not breached.

10.2 Confidential information, personal data and access credentials of the Client are not entered into publicly training services, unless the Client approves this or the service offers suitable contractual and technical safeguards.

10.3 The Client may prohibit the use of specific tools in text form. Effort, cost and duration may change as a result.

11. Warranty

11.1 The Contractor is liable for defects in the service under the statutory provisions, unless this clause or the offer provides otherwise. The duty to inspect and give notice of defects under § 377 UGB remains unaffected within its scope. The Client notifies a defect in text form without undue delay after discovering it, describing it so that the Contractor can reproduce and narrow it down.

11.2 In business between entrepreneurs the warranty period is, to the extent legally permissible, six months from acceptance, otherwise from performance.

11.3 In case of justified defects, the Contractor is first entitled to improvement or replacement within a reasonable period. The Client enables the investigation. If the Client or a third party attributable to it intervenes in or modifies the work result, the Contractor's warranty lapses. It continues only insofar as the Client proves that the defect is unrelated to the intervention.

11.4 There is no defect in case of an environment not agreed, incorrect operation, changes by the Client or third parties, disruptions of third-party services, or omitted updates outside the Contractor's area of responsibility.

11.5 Consulting, workshops, hourly services and retainers are services. A specific outcome is not owed unless expressly agreed as a work result.

11.6 The presumption of defectiveness under § 924 ABGB is excluded. A reversal of the burden of proof, that is, an obligation of the Contractor to prove that it is not at fault for the defect, is excluded.

11.7 The Client is entitled to have the defect remedied by third parties at the Contractor's expense only after it has enabled the Contractor to make two attempts at improvement and the second attempt has also failed, if the Contractor seriously and finally refuses improvement, or if immediate action is required because of imminent danger.

12. Liability

12.1 The Contractor is liable without limitation for intent and for personal injury. For blatant gross negligence the Contractor is liable under the statutory provisions.

12.2 No liability is accepted for damage caused by the Contractor through slight negligence only. Personal injury is excepted; for this the Contractor is liable under the statutory provisions also in case of slight negligence.

12.3 For gross negligence that is not blatant, liability is limited in amount. Per claim the Contractor is liable at most up to the fee the Client actually paid for the affected service in the twelve months before the event causing the damage, and for a one-off project up to its net fee. For all claims of one contract year together, liability is limited to the fee paid for that contract year, and for a one-off project to its net fee. Several claims based on the same cause count as one claim.

12.4 To the extent legally permissible, indirect damage, consequential damage, lost profit, savings not achieved, business interruption and third-party claims are excluded.

12.5 For data loss the Contractor is liable under this clause only for the typical restoration effort with proper, current backups. Backup is the Client's responsibility unless Part G expressly transfers it. Liability under this clause is in any event limited in amount by clause 12.3.

12.6 Where the Contractor performs the service with the help of third parties and warranty or liability claims against those third parties arise in this connection, the Contractor assigns those claims to the Client. In that case the Client first pursues the third party. Claims under the Austrian Product Liability Act remain unaffected.

12.7 Claims for damages become time-barred under the statutory provisions, but in any event on expiry of one year from knowledge of the damage and of the party causing it. This period does not apply to personal injury or to claims arising from intent or blatant gross negligence.

13. Term and termination

13.1 Project contracts end with complete performance of the agreed scope. The right of withdrawal under § 1168 ABGB remains unaffected. In case of early termination by the Client, the services rendered are to be paid; for work not yet performed, the agreed fee less demonstrably saved expenses.

13.2 Continuing obligations are concluded for an indefinite period unless otherwise agreed. Notice periods follow from Parts E and G, otherwise three months to the end of a month in text form.

13.3 Cancellation of a placed order by the Client requires the Contractor's consent in text form. The Contractor's claim under clause 13.1 and § 1168 ABGB remains unaffected; it amounts in any event to at least 30 percent of the order value not yet invoiced, plus the fee for services already rendered and reimbursement of costs incurred. For workshops Part B prevails.

13.4 The right to terminate for good cause remains unaffected. Good cause exists in particular in case of a material breach of contract despite a grace period, late payment of more than 30 days despite a reminder with grace period, opening of insolvency proceedings where continuation is unreasonable, or a serious threat to security or data.

14. Force majeure

Events outside a Party's reasonable control, in particular natural events, official measures, failure of indispensable networks or cloud providers, and cyberattacks despite reasonable measures, release that Party for the duration of the disruption. Deadlines shift accordingly. If the disruption lasts longer than 60 days, either Party may end the part of the affected order not yet performed.

15. Final provisions

15.1 Austrian law applies, excluding its conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods. The contract language is German. Translations serve information only.

15.2 For all disputes arising from or in connection with the contract, including its formation and termination, the court with subject-matter jurisdiction in Vienna has exclusive jurisdiction. The Contractor may also sue the Client at the Client's general place of jurisdiction.

15.3 Amendments to the contract and to this form requirement require text form. There are no oral side agreements.

15.4 The transfer of rights and obligations under the contract requires the prior consent of the other Party in text form. The Contractor may, however, transfer the contract without the Client's consent to a company affiliated with it under group law.

15.5 Should individual provisions be or become invalid or unenforceable, the validity of the remaining provisions remains unaffected. The statutory rule takes the place of the invalid provision, or failing that, a valid provision that comes closest to the economic purpose.

B. Workshop

B.1 A workshop is training limited in time. What is owed is delivery on the agreed date in the agreed format. A specific learning outcome and later implementation at the Client are not owed.

B.2 The Client receives a simple right to use the materials provided for internal purposes. Passing them on to third parties, publication and use as the Client's own training service require the Contractor's consent in text form.

B.3 If the Client reschedules or cancels, the following applies unless otherwise agreed: free of charge up to and including 14 days before the date; thereafter 50 percent of the fee; from seven days before the date or in case of no-show the full fee, in each case less demonstrably saved expenses. Non-cancellable travel and venue costs are reimbursed in addition.

B.4 If the Contractor cancels, it offers a replacement date or refunds fees already paid. Further claims are excluded unless the Contractor acted with intent or gross negligence.

C. Audit

C.1 An audit (also: assessment) is the written examination of the subject delimited in the offer. What is owed is the report in the agreed scope and one walkthrough of the report. The decision on funding and continuation is the Client's.

C.2 The report is a work result. Within 14 days of delivery the Client may request one round of revision. It covers ambiguities and missing references to documents already provided, not an extension of the subject. After that the audit has been performed. If no request is made, the report is deemed accepted on expiry of the period.

C.3 The Client may use the report internally and towards advisers and corporate bodies bound to confidentiality. Publication or use towards third parties as an attestation requires the Contractor's consent.

C.4 Implementation of the recommendations is not part of the audit and requires a separate contract.

D. Hourly Services

D.1 Hourly services are services billed by time. The agreed rate applies. The smallest unit is a started quarter hour, unless otherwise agreed.

D.2 Services outside business hours (working days 9:00 to 18:00, Vienna time) require an express order. Unless otherwise agreed, the surcharge is 50 percent on working days outside these hours and 100 percent on Saturdays, Sundays and public holidays.

D.3 Unused hours of a contingent expire at the end of the respective period unless carry-over is agreed.

D.4 Hourly services create no claim to a work result unless they are expressly assigned to one.

E. Retainer

E.1 A retainer is the reservation of the agreed time or service contingent. What is owed is availability within that frame, not an unspecified outcome.

E.2 Parts not called off expire at the end of the period unless carry-over is agreed. An agreed carry-over is limited to the immediately following period. Time called off beyond the contingent is billed at the agreed hourly rates.

E.3 The retainer is concluded for an indefinite period unless otherwise agreed. Either Party may terminate with three months' notice to the end of a month in text form. Periods already due remain payable.

E.4 If the contingent is not called off, the fee for the period remains owed. The reservation is the service.

F. Product Development for the Client

F.1 This part applies to the development, production or substantial extension of software or other products for the Client. The scope owed follows exclusively from the offer and the service description it refers to. Functions, interfaces, migrations, training, documentation, third-party licenses, hosting and maintenance not listed are not owed.

F.2 The basis is the service description approved by the Client in text form. The Client checks it for correctness and completeness. The Contractor points out infeasibility recognizable to it under clause 4.4. It does not owe a comprehensive review of all of the Client's technical and legal preconditions unless expressly agreed.

F.3 The Client names a contact person with decision-making authority, provides the environment, test data and access, and acquires the necessary third-party licenses unless the Contractor expressly supplies them. The Client grants the rights required for the service and indemnifies and holds the Contractor harmless against claims of rights holders, unless the Contractor is itself at fault.

F.4 Changes to the approved scope require a change request. The Contractor presents the recognizable consequences for fee, deadline and scope within a reasonable period. The change takes effect only if the Client accepts the change offer in text form. The periods and consequences of clauses 5.4 to 5.6 apply to the decision. Until the decision, the previous scope remains binding. The Contractor may suspend the affected work. It may bill the effort for a substantial estimate.

F.5 Deadlines presuppose timely cooperation and approvals. The Contractor may hand over and bill separable states separately.

F.6 The Contractor notifies readiness for acceptance in text form. The Client has 14 days to test. Material defects are to be reported in a traceable manner. A defect is material if it substantially hinders the agreed use in live operation. Immaterial defects do not prevent acceptance; they are remedied within a reasonable period.

F.7 The service is deemed accepted if the Client does not report material defects within the period, uses the service productively without reservation, or pays the relevant invoice without reservation. Productive use counts as acceptance in any event.

F.8 After full payment the Contractor grants the Client, in the contractual work result created specifically for it, the exclusive right to use it in its own business and to reproduce it internally. Handover of source code, repositories, build environments or editable project files is not owed unless expressly agreed. Without such handover the right of use does not include editing or further development by the Client or third parties. Background IP remains with the Contractor; the Client receives a simple right of co-use in it insofar as it is firmly embodied in the work result and required for its operation. Open-source and third-party software remain with their licensors.

F.9 Source code, the transfer of all rights, and a prohibition on reusing background IP are separate services and are owed only where expressly agreed.

F.10 If a dispute arises as to whether the acceptance criteria are met, the Parties obtain an expert determination before going to court. They agree on a court-certified expert within 14 days. If no agreement is reached, either Party may apply to the court with subject-matter jurisdiction in Vienna for the appointment. The expert decides solely whether the acceptance criteria are met. The determination binds the Parties as an expert determination unless it is manifestly incorrect. The costs are borne by the Party whose position is not confirmed; in case of doubt the expert decides on costs. The jurisdiction of the courts otherwise remains unaffected.

G. Hosting and Operations

G.1 This part applies where the Contractor operates, hosts or provides the Client's systems, applications or data in an environment for which the Contractor is responsible. The scope follows from the offer. Without express agreement the following are not owed: permanent availability, a specific availability rate, geo-redundancy, penetration tests, recovery drills, and functional maintenance of the application.

G.2 The Contractor may use suitable subcontractors, in particular data center and cloud providers established in the EEA or with an adequate level of data protection. The Client's contracting party remains the Contractor.

G.3 Without an SLA the Contractor owes availability reasonable in ordinary business operations, not uninterrupted operation. A percentage applies only where expressly agreed. The Contractor announces planned maintenance where possible. The following do not count as outages: planned maintenance, disruptions within the Client's sphere, failures of networks or third parties outside the Contractor's control, force majeure, and attacks that could not be prevented despite reasonable measures.

G.4 The Contractor owes backups only where expressly agreed. Otherwise backup is the Client's responsibility. Where backup is agreed, the rhythm and retention specified there apply.

G.5 The Client is responsible for content, user access, functional updates of the application and the lawfulness of use, unless the Contractor has expressly assumed these tasks. The Client indemnifies and holds the Contractor harmless against third-party claims arising from content and use, unless the Contractor is itself at fault.

G.6 The Contractor may temporarily block access if (a) content is unlawful or a substantiated notice of an infringement has been received, (b) there is an acute security threat, (c) an official or court order exists, or (d) late payment continues after a reminder and grace period. Where possible the Contractor announces the block, otherwise it notifies it without delay afterwards.

G.7 Hosting is concluded for an indefinite period unless otherwise agreed. Either Party may terminate with three months' notice to the end of a month in text form.

G.8 After the end of the contract the Contractor deactivates the access under its control. On request and against payment of the effort, it hands over a customary data export within 30 days after the end of the contract, where available and reasonable. The Client cooperates within this period. Thereafter the Contractor deletes the data unless a retention obligation stands in the way. Accounts with third parties are taken over or newly set up by the Client itself.

G.9 Where the Contractor processes personal data on behalf of the Client in hosting, clause 9.2 applies. Without a data processing agreement it does not commence operation.