LYYNX Consulting GmbH

General Terms and Conditions
Service and Consulting

1. General principles / scope of application

1.1 These General Terms and Conditions of Business shall apply exclusively to all legal transactions between the client and LYYNX Consulting GmbH, Seestadtstraße 27, 1220 Vienna, (hereinafter referred to as LYYNX or the contractor). The version valid at the time of the conclusion of the contract shall be authoritative in each case.

1.2 The General Terms and Conditions of LYYNX in the respective valid form shall also apply to all future legal relationships between LYYNX and the client, insofar as these are not merely project-specific, thus even if no express reference is made to them in further contract conclusions.

1.3 Conflicting general terms and conditions of the client are invalid vis-à-vis LYYNX, unless they are expressly acknowledged by LYYNX in writing. Otherwise LYYNX already now expressly contradicts the general terms and conditions of the respective client.
Changes to the descriptions of services, price lists and general business relations of LYYNX will be communicated to the client in writing and are considered agreed upon if the client does not object to them in writing within two weeks. From the validity of the new agreement, the changes to the general business relations shall also be deemed agreed for all other ongoing contracts.
In the event of contradictions between the general business relations of LYYNX and those of the client, the general business relations of LYYNX shall take precedence over those of the client.

1.4 Amendments and supplements to this agreement, including supplementary agreements, must be made in writing in order to be valid. This formal requirement can only be waived in writing. Should individual provisions of the agreement be invalid or unenforceable, the invalid provision shall be replaced in contracts by a valid provision that comes closest to the economic sense and purpose of the invalid provision.

2. Scope of the consulting assignment / substitution / change request procedure

2.1 The scope of a specific consulting assignment shall be contractually agreed in each individual case in the form of a service description (Statement of Work).

2.2 LYYNX shall be entitled to have the tasks incumbent upon LYYNX performed in whole or in part by competent third parties (external service). The commissioning by LYYNX shall take place either in the name and on the account of the client or in the own name and on the own account of LYYNX. Regardless of the chosen form of commissioning, the respective contractors of LYYNX are not vicarious agents of LYYNX. LYYNX is therefore only liable for a selection fault. If third parties are involved at the request of the client, LYYNX is not liable for these third parties.

2.3 The client undertakes not to enter into any business relationship whatsoever with persons or companies that LYYNX uses to fulfil its contractual obligations during and up to the expiry of three years after termination of the contractual relationship. The client will not commission these persons and companies, in particular with the same or similar consulting services, which LYYNX also offers.

2.4 Insofar as the effort is increased or deadlines are influenced by the client's requests for changes and additions, LYYNX is entitled to an additional fee / postponement of the deadlines. Requests for changes and/or additions are to be made in writing by the client. LYYNX reserves the right to reject "Change-Requests" if this could endanger the planned project. The remuneration for the execution of the "Change Request" is based, unless otherwise agreed, on the fee agreed in point 9, or the underlying offer.

3. Duty of clarification - Duty of cooperation of the client / Declaration of completeness / Acceptance

3.1 The client guarantees that the organisational framework conditions for the fulfilment of the consulting assignment at his place of business allow undisturbed work conducive to the rapid progress of the consulting process. The client shall provide LYYNX with access to its communication and data processing systems, insofar as this is necessary. Access is provided via workstations at the client's location and, if necessary, via remote access for LYYNX.

The client must provide LYYNX with all information in writing as soon as possible - without any request and during the entire contractual relationship - and provide all services that are necessary for the provision of the service by LYYNX.

The client shall himself check the information/services provided by him for suitability, correctness and legality.

The client is liable for all damages and disadvantages caused by defective, delayed or omitted cooperation of the client. He shall also be liable for any additional expenses incurred by LYYNX as a result. If claims are made against LYYNX by third parties due to infringements of rights in connection with information and/or services provided by the client, the client undertakes to indemnify and hold LYYNX harmless and to support LYYNX in the defence against these claims.

3.2 The client will inform LYYNX comprehensively about previously carried out and/or ongoing consultations - also in other specialist areas.

3.3 The client shall ensure that LYYNX is provided with all documents necessary for the fulfilment and execution of the order in a timely manner and that LYYNX is informed of all processes and circumstances that are necessary and expedient for the execution of the order. This also applies to all documents, processes and circumstances which only become known during the activity. If the client does not fulfil one of his obligations to cooperate in accordance with the agreement, despite a written reminder and the setting of an appropriate period of grace of 2 working days, and if deadlines cannot be met as a result, the corresponding deadline agreements shall lose their validity and shall be renegotiated. Any disadvantages of any kind resulting from this shall be borne exclusively by the client and the client waives the assertion of compensation and liability claims of any kind in this context against LYYNX. This waiver is accepted by LYYNX.

3.4 The client shall ensure that his employees and the employee representation (works council) provided for by law and established if necessary are informed by LYYNX prior to the commencement of the activity.

3.5 LYYNX will hand over to the client one version each of the documents to be delivered according to the contract for acceptance. These documents will be checked by the client whether they comply with the contractual agreements. Within 5 working days after delivery of the documents the client shall inform LYYNX of any change requests. LYYNX will incorporate change requests within a period of 14 working days. Other documents are not subject to acceptance. Acceptance of the documents is granted after a new check, provided that LYYNX has incorporated the changes. Necessary additional expenditure on the part of LYYNX as a result of changes is to be remunerated separately by the client. Acceptance takes place by mutual agreement; should this not take place within 14 days of the written request, the work is deemed to have been approved/accepted. Should an acceptance not be possible due to possible defects, the client shall submit a written list of defects to LYYNX.

3.6 Insofar as the client intervenes in the services of LYYNX on his own authority and makes changes, he is liable for any additional expenses incurred by LYYNX as a result (e.g. determination of defects, testing, correction, rectification of defects, etc.).

3.7 Unforeseeable and/or unavoidable events - including a default of the client in the fulfillment of his contractual obligations - extend deadlines or postpone deadlines by the duration of this event plus the duration of the necessary measures to be taken for this case. LYYNX will inform the client of this in writing.

4. Safeguarding independence

4.1 The contracting parties undertake to be loyal to each other.

4.2 The client is prohibited from enticing away employees of LYYNX and accepting orders according to the range of services of LYYNX on his own account. This agreement is valid for three years beyond the end of the contract. In the event of a breach of this obligation, a contractual penalty in the amount of EUR 30,000.00 / per breach shall be deemed agreed. This is not subject to the judicial right of moderation.

5. Reporting / Reporting obligation

5.1 LYYNX undertakes to report to the Client on its work, that of its employees and, if applicable, that of third parties commissioned by LYYNX, in accordance with the progress of the work.

5.2 The client will receive the final report within a reasonable period of time, i.e. two to four weeks, depending on the type of consulting assignment, after completion of the assignment.

5.3 LYYNX shall not be bound to any place of work or working hours in the production of the agreed work.

6. Protection of intellectual property

6.1

6.2 In the event of a violation of these provisions by the client, LYYNX is entitled to the immediate premature termination of the contractual relationship and to the assertion of any legal claims, in particular claims for injunctive relief, removal, publication of a judgement, appropriate remuneration, surrender of the profit and compensation for damages.

7. Warranty / Liability / Compensation

7.1 The following provisions of the warranty replace the provisions of the statutory warranty law and the law on damages.

7.2 Complaints about discovered defects must be made in writing by the client immediately, at the latest within 5 days of handover. The written complaint must describe the defect in detail. If a defect is not reported in time, the service / work shall be deemed to have been accepted without reservation. Hidden defects/damage which only occur after the expiry of 5 days, but still within the warranty and compensation period, must also be notified by the client within 5 days of their discovery.

The obligation to give notice of defects shall apply to all defects and damage which the Client must recognise with the due diligence of a prudent businessman when carrying out appropriate checks. If the client fails to give notice of a defect in due time, the assertion of warranty claims and claims for damages as well as claims based on other liability rules, in particular recourse claims, of the client shall be excluded

LYYNX is entitled, regardless of fault, to remedy defects in its services that have become known. LYYNX will inform the client immediately and the client has to enable LYYNX to remedy the defects.

7.3 LYYNX does not guarantee and does not assume any liability for backing up the client's data, unless otherwise agreed.

7.4 Customer's warranty and liability claims shall lapse entirely if defects are caused by external influences, modifications, inadequate conditions of use, operating errors, improper operation (including but not limited to the use of machine capacities, the use of which has not been agreed with LYYNX in writing), use outside the specified conditions of use, inadequate maintenance by the customer or a third party or defects caused by a product not supplied by LYYNX.

7.5 The client is not entitled to refuse acceptance of the service in the event of merely minor defects. If the client refuses to accept the service without good reason, even repeatedly, the service shall be deemed to have been accepted. From this point in time onwards, the service shall be deemed to have been provided by LYYNX free of defects.

7.6 The warranty period is 6 months from handover. In the absence of any agreement to the contrary, the time of handover shall be the time of completion. The existence of a defect must be proven by the client. § 924 ABGB (Austrian Civil Code) shall not apply.

After determination of the defect, LYYNX will choose between improvement, exchange, cancellation or price reduction. The warranty period is neither extended nor does it start anew for the part of the service affected by the rectification of the defect.

7.7 The contractor shall support LYYNX to the best of his ability in a possible rectification of defects, in particular to take all reasonable measures for data backup. The client can only refuse replacement services from LYYNX if this is unreasonable for him for an important reason.

7.8 Remedies of a defect claimed by the client do not constitute an acknowledgement. The client must grant LYYNX at least three attempts to remedy the defect.

7.9 If claims of defects by the customer prove to be unjustified, the customer shall be obliged to reimburse any expenses incurred for the determination of the absence of defects or the rectification of defects.

7.10 A recourse against LYYNX according to § 933b ABGB is excluded.

7.11 The liability of LYYNX for damages and other claims based on liability provisions - also for recourse claims - is limited to intent and blatant gross negligence. Liability for plain gross and slight negligence, for loss or damage of data, for the ability to establish the desired connection at any time, for altered data, the compensation of consequential damages, indirect/immediate damages, financial losses, savings not achieved, loss of interest, damages from third party claims against the client, loss of profit, loss of business, goodwill is excluded.

Such claims are subject to a limitation period of six months from the date of knowledge of the damage and the damaging party.

The reversal of the burden of proof at the expense of LYYNX is excluded. In particular, the existence of a defect at the time of handover, the time of discovery of the defect, the timeliness of the notice of defect as well as the existence and the degree of fault are to be proven by the client.

Recourse against LYYNX according to § 12 PHG is excluded.

7.12 The liability of LYYNX for whatever legal reason for all actual direct damages is limited to a maximum of EUR 100,000.00 for each event causing damage. If the total damage is higher, the compensation claims of the individual injured parties shall be reduced proportionately.

7.13 LYYNX shall not be liable for any materials, equipment, programs, etc. provided by the Client or third parties for the performance of work.

7.14 LYYNX shall not be liable for its vicarious agents. Insofar as this exclusion has not been negotiated in detail, the following paragraph shall apply.

The limitations of liability also include claims against employees, representatives and vicarious agents of LYYNX.

7.15 The right to rescind the contract due to error and due to reduction by more than half by the client is excluded.

7.16 In the event of non-fulfilment of the contract as agreed, the client is only entitled to assert claims if he has granted LYYNX an appropriate, at least 21-day grace period in writing. This also applies to the termination of the contract for good cause.

8. Secrecy / data protection

8.1 LYYNX agrees to maintain confidentiality regarding all business matters of which LYYNX becomes aware, in particular business and trade secrets, as well as regarding any information which LYYNX receives regarding the type, scope of operation and practical activities of the client.

8.2 LYYNX shall be obligated to maintain confidentiality towards third parties regarding the entire content of the work as well as all information and circumstances that LYYNX has received in connection with the creation of the work, in particular also regarding the data of clients of the client.

8.3 LYYNX shall be released from the obligation to maintain secrecy with regard to any assistants and representatives used by LYYNX. LYYNX shall transfer the obligation of confidentiality to them.

8.4 The obligation to maintain confidentiality shall continue beyond the end of the contractual relationship. Exceptions exist in the case of legal obligations to make statements.

8.5 LYYNX is entitled to process entrusted personal data within the scope of the purpose of the contractual relationship. The client guarantees LYYNX that all necessary measures will be taken for this purpose, especially those in the sense of the applicable data protection law, such as declarations of consent of the persons concerned (see data protection agreement).

8.6 For the purposes of this Agreement, all information (including, but not limited to, technical, practical and commercial information) shall be deemed to be Confidential Information, without exception, except as set out in (a) to (c) below.

8.7 The contracting parties undertake to keep passwords secret and to change them immediately as soon as there is a suspicion that unauthorized third parties may have gained knowledge of them. The client will inform LYYNX immediately if such a suspicion exists and vice versa. Should LYYNX make changes to the passwords, it will inform the client of this as soon as possible. These passwords will be handed over by the client exclusively to persons of the client who are authorized for this purpose.

9. Fee

9.1 After completion of the agreed work, LYYNX shall receive a fee according to the agreement between the client and LYYNX. LYYNX is entitled to submit interim invoices according to the progress of the work and to claim an account from the client. Unless otherwise agreed, the fee shall be due for payment upon presentation of the invoice by LYYNX, subject to the hereby agreed waiver of set-off. A right of retention by the client is excluded. In the event of default of payment, 10 percent default interest per annum is agreed upon. The client shall bear all necessary and expedient measures (collection, lawyer's fees, etc.) in the event of non-payment.

9.2 LYYNX shall issue an invoice entitling to input tax deduction with all legally required features. Unless expressly stated otherwise, all price quotations are exclusive of the respectively applicable value added tax. If tax rates or remunerations are changed within the calculation period, the rates applicable in this contract shall apply exclusively.

All services provided by LYYNX that are not expressly covered by the agreed fee, such as additional services agreed upon at a later date, are to be remunerated separately.

9.3 In the case of contracts for an indefinite period of time or those that are automatically renewed, LYYNX is entitled to make an appropriate price adjustment annually, taking into account inflation, consumer and producer price indexes, collective bargaining agreements, currency fluctuations, as well as similar circumstances beyond LYYNX's control.

9.4 Any cash outlays, expenses, travel costs, etc. are to be reimbursed additionally by the client against invoicing by LYYNX. For travel expenses, the statutory provisions apply, such as official mileage allowance. For overnight stays a maximum of EUR 130.00 per night will be charged.

9.5

9.6 In case of non-payment of interim invoices, LYYNX is released from its obligation to provide further services. The assertion of further claims - resulting from the non-payment - is not affected by this.

9.7 In the case of a different invoice recipient from the client, it is agreed that the client, regardless of this, assumes the agreed fee for the case of non-payment by the invoice addressee in his payment obligation and makes payment within 7 days after written request by LYYNX.

9.8 If hourly or daily rates have been agreed for the provision of services, these shall apply to normal working hours Monday - Friday from 08:00 - 18:00. Services provided Monday to Friday from 18:00 - 22:00 shall be invoiced with a 50% surcharge. Services which are rendered outside these periods (night hours, as well as weekends and public holidays) will be invoiced with a 100% surcharge. Services outside normal working hours must always be agreed with the client.

9.9 In the event of termination of the contract, LYYNX is entitled to remuneration for all services rendered by LYYNX up to the effective date of termination. If LYYNX has also entered into contractual obligations towards third parties with regard to the fulfilment of this contract or has made investments and these are no longer required as a result of the termination, the client shall reimburse LYYNX for all costs incurred as a result of such contractual obligations.

9.10 If an hourly quota (hourly pool) is agreed with the Client, the following shall apply in deviation from 9.1:

LYYNX shall submit an invoice for the agreed hourly quota in advance for the defined hourly quota period. The client is entitled to call up services from LYYNX during this period as long as the volume of the framework agreement has not been used up. Should the volume be used up before the end of the agreed period, the client can increase the hourly quota under the same conditions. The additionally agreed hours will be invoiced immediately and are valid until the end of the hourly quota period. Unused hours expire after the expiry of the hourly quota period. There will be no refund of hours already paid. LYYNX is obligated to provide resources for the client during the hourly quota period.

10. Electronic invoicing

10.1 LYYNX is entitled to also submit invoices to the client in electronic form. The client expressly agrees to the sending of invoices in electronic form by LYYNX.

11. Term of agreement

11.1 This contract ends in principle with the completion of the project, or with the completion of the agreed service duration (service description, statement of work).

11.2 Notwithstanding the foregoing, the contract may be terminated at any time for good cause by either party without notice. An important reason is,

12. Final provisions

12.1 The contracting parties confirm that they have provided all the information in the contract conscientiously and truthfully and undertake to notify each other immediately of any changes.

12.2 There are no verbal ancillary agreements.

12.3 The exclusive place of jurisdiction for all disputes arising directly or indirectly from this contractual relationship shall be the competent court in Vienna.

Place of performance for delivery, service and payment is exclusively Vienna.

This agreement shall be governed by Austrian substantive law to the exclusion of the conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods (CISG).