Terms & Conditions

General terms and conditions for personnel and management consulting

last updated 01.02.2020

1. General information

The following General terms and conditions regulate the rights and obligations of Trenkwalder Personaldienste GmbH, hereinafter referred to as “Trenkwalder”, and the contractual partner, hereinafter referred to as the “Client”, in connection with the provision of services of

“personnel and management consulting”.

For reasons of better readability, persons are referred to using the male form in these General terms and conditions. This always refers to both female and male persons.

2. Personnel and management consulting

Trenkwalder carries out the personnel search and selection for the client on the basis of the job description of the position to be filled, drawn up jointly with the client or provided by the client, and the requirements profile of the candidate.

The scope of a specific management consulting assignment is contractually agreed on a case-by-case basis.

3. Duty of the client to provide information

The client shall ensure that all documents necessary for the fulfilment and execution of the order are submitted to Trenkwalder in good time, even without a specific request to do so, and that Trenkwalder is informed of all processes and circumstances which are of significance for the execution of the order. This also applies to all documents, processes and circumstances that only become known during Trenkwalder’s activities.

If Trenkwalder forwards a candidate within the scope of a search order who has previously independently applied to the client for this position, the client must inform Trenkwalder immediately. If this information is not provided and the client uses other services in connection with the candidate (e.g. obtaining references, coordinating interview appointments, etc.), this candidate is deemed to have been proposed by Trenkwalder.

The client must inform Trenkwalder immediately in writing of any changes to its name, company name, address, payment office, company register number or legal form. Documents shall be deemed to have been received by the client if they are sent to the address or payment office last notified by the client.

4. Contract duration

The consulting contract comes into effect upon acceptance of the offer, at the latest with the first necessary step taken by Trenkwalder for the personnel search and selection on the basis of the job description and the requirements profile.

This contract generally ends with the completion of the project. If the client defaults on payment of interim invoices, if insolvency or bankruptcy proceedings are initiated against it or if it otherwise acts in gross violation of the contract or the law, Trenkwalder is entitled to terminate the contract with immediate effect without observing a period of notice.

5. Protection of intellectual property

The copyrights to the works created by Trenkwalder and Trenkwalder employees (in particular offers, reports, analyses, expert opinions, organisational plans, programs, service descriptions, drafts, calculations, drawings, data storage media, etc.) belong to and remain with Trenkwalder. They may be used by the client during and after termination of the contractual relationship exclusively for the purposes covered by the contract. The client is therefore not entitled to reproduce and/or distribute works without the express consent of Trenkwalder. Under no circumstances will unauthorised reproduction/distribution of the work give rise to any liability on the part of Trenkwalder towards third parties – in particular for the accuracy of the work.

If the client violates these provisions, Trenkwalder is entitled immediately to terminate the contractual relationship prematurely and to assert other legal claims, in particular for injunctive relief and/or damages.

6. Fees

Unless otherwise agreed, the following regulations apply with regard to the fees: The fee to be agreed with the client covers the workload of Trenkwalder for the search, selection and presentation of suitable candidates and shall be invoiced by Trenkwalder after conclusion of the (free) service contract between client and candidate - i.e. at the latest when the candidate starts work (success fee). Trenkwalder is entitled to submit interim invoices corresponding to the progress of the work and to request advance payments corresponding to the respective progress. Depending on the agreement made, the fee comprises a certain percentage of the annual gross salary for full-time employment.

The calculation of the fee is based on the gross annual salary for full-time employment (in the case of part-time employment, the gross annual salary must be extrapolated to full-time employment) of the worker placed by Trenkwalder. The gross annual salary is made up of the gross annual salary (fixed salary) promised to the worker placed by Trenkwalder or agreed with him, plus flat-rate overtime payments and pro rata special payments as well as the average of any commissions, bonuses and allowances in the first year of service. The fee is commercially rounded to the nearest ten.

The fee is due for payment immediately after invoicing without deduction and will be charged plus 20% VAT. Invoicing is done electronically. The client expressly agrees to the sending of information in electronic form and undertakes to provide its email address, which is to be used for this purpose. In case of late payment, the statutory interest rate of 9.2% plus the applicable base interest rate will be charged. As compensation for the collection costs, the client will be charged reminder fees of €40 per reminder run.

If the order is not terminated for reasons on the part of the client or due to a justified premature termination of the contract pursuant to point 4 and/or point 5 of these General terms and conditions, Trenkwalder shall retain the right to payment of the entire agreed fee less the expenses saved.

Trenkwalder expressly declares that all claims arising from the existing contractual relationship with the client are transferred to Intermarket Bank AG, Am Belvedere 1, 1100 Vienna, within the framework of a factoring agreement and that payments can only be made to Intermarket Bank AG as the payee with debt-discharging effect. The client is not entitled to offset its own claims against the invoice amount or to withhold payments due for any reason whatsoever.

7. Liability and compensation

Trenkwalder is liable to the client for damages – except for personal injuries – only in the event of gross negligence (wilful intent or gross negligence).

The client’s claims for damages can only be asserted in court within six months of becoming aware of the damage, but at the latest within three years of the event giving rise to the claim.

If the client enters into a (free) service contract with a candidate nominated by Trenkwalder within 2 years of the first announcement of the name, the client undertakes to inform Trenkwalder of this in writing within 2 weeks of the conclusion of the (free) service contract and the fee agreed in the consultancy contract shall be due for payment immediately. If notification is made late or if the client fails to do so, it must pay twice the fee agreed in the order confirmation.

8. Confidentiality, secrecy and data protection

The contracting parties undertake to be mutually loyal and confidential.

The client undertakes to treat all names of candidates and all information received about them as strictly confidential. In particular, it undertakes not to pass these details on to third parties under any circumstances or even to name them. If the client acts contrary to this obligation, a contractual penalty of twice the fee agreed in the order confirmation shall be deemed to have been agreed, regardless of fault and not subject to judicial mitigation.

Trenkwalder undertakes to maintain absolute confidentiality regarding all business matters of the client of which Trenkwalder becomes aware in the course of processing the order, in particular business and trade secrets as well as any information about the nature, scope of operations and practical activities of the client.

This confidentiality obligation continues even after the termination of the business relationship. Exceptions to this exist in the case of statutory obligations to make statements.

Trenkwalder is authorised to process personal data entrusted to it within the scope of the purpose of the contractual relationship. The client warrants to Trenkwalder 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 from the data subjects.

9. Miscellaneous

The client expressly agrees to the sending of offers and information by electronic means or to being contacted by telephone by Trenkwalder.

10. Final provisions

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 and the contracts concluded on the basis of them. The ineffective provision shall be replaced by an effective provision that comes closest to its meaning and economic purpose.

Any agreements deviating from these terms and conditions must be recorded in writing. This also applies to deviating from the written form. Verbal collateral agreements do not exist.

This contract is governed by Austrian substantive law, excluding the conflict of law rules of private international law.

The place of jurisdiction is Vienna.