1. Application Of These General Terms And Conditions
1.1. RD&C Research, Development & Consulting GmbH Is A Limited Liability Company With Its Corporate Seat In Vienna, Registered With The Commercial Register Of The Commercial Court In Vienna Under Fn 412049 F (Hereinafter “RD&C“). The Business Of RD&C Particularly Consists Of Expertise And Consulting In The Area Of Life Sciences, The Development And Exploitation Of R&D Projects In The Area Of Pharma In General And Research, Development, Manufacture And Marketing Of Substances With Known And Unknown Biological Characteristics, Pharmaceutical Excipients, Reference Substances For Quality Assurance And Medical Products.
1.2. RD&C Provides All Consulting Services To Business Clients (Unternehmer) Within The Meaning Of Applicable Law (Hereinafter The “Customer“; The Customer And RD&C Hereinafter Also Jointly Referred To As The “Parties“) On The Basis Of The Following General Terms And Conditions (Hereinafter The “General Terms And Conditions“) As Applicable At The Time The Respective Agreement Has Been Entered Into.
1.3. These General Terms And Conditions Shall Also Apply To Any Future Contractual Relationships Between The Parties, Even If These General Terms And Conditions Are Not Expressly Referred To In Additional Or Ancillary Agreements.
1.4. RD&C Expressly Rejects Any Deviating General Terms And Conditions Of The Customer. Any Deviating Or Supplementary General Terms And Conditions Shall Not Become Integral Part Of The Contract, Even If No Explicit Objection Has Been Made. Any Deviations From These General Terms And Conditions, Additional Agreements Or Any Possible Contradictory Terms And Conditions Of The Customer Shall Only Be Valid, If They Have Been Confirmed In Writing By RD&C.
1.5. The Provisions Of These General Terms And Conditions May Be Amended By RD&C Without Notice At Any Time, Whereby Any Such Amendments Shall Be Published (I) On The Website Of RD&C And (Ii) By Sending The Text Of The Amendment To The E-Mail Address Provided By The Customer In Each Case ((I) And (Ii)) At Least 60 Days Before Any Such Amendments Enter Into Force. If The Customer Does Not Object To Any Such Amendments Within 60 Days After Receipt Of The Aforementioned Announcement In Writing By E-Mail, Any Such Amendments Shall Be Deemed Accepted By The Customer. In The Case Of The Customer’s Timely Objection To Any Such Amendments, The Contractual Relationship Between The Customer And RD&C Shall Be Continued Subject To The General Terms And Conditions As In Force Prior To The Announced Amendments.
2. Conclusion Of A Contract, Scope Of The Consulting Assignments
2.1. The Customer Receives A Written Offer From RD&C (The “Offer“), Wherein The Specific Work Assignment Is Defined With Respect To Type, Extent And Costs Of The Services Of RD&C.
2.2. The Offer Of RD&C And Any Provisions Set Forth Therein Shall Be Non-Binding. The Contractual Relationship Between The Parties (The “Assignment“) Shall Only Be Concluded After Written Confirmation Of The Offer By RD&C. Any Subsequent Modification Of The Assignment Requires The Written Confirmation By RD&C.
3. Presentations
3.1. The Invitation Of The Customer To Prepare A Presentation With Specified Content Shall Already Be Deemed An Assignment Subject To These General Terms And Conditions. Unless Otherwise Agreed In Writing, RD&C Is Entitled To Charge A Fee For The Performance Of Services In The Course Of Such Assignment Based On The Hourly Rates Of RD&C Applicable At The Time Of The Presentation. RD&C Shall Also Be Entitled To Such Fee In The Event The Presentation Is Not Held Due To Reasons, Which Lie Within The Responsibility Of The Customer.
3.2. The Customer Shall Not Be Entitled To Exploit, Use Or Develop The Content Presented By RD&C In Any Other Form Than Within An Assignment Entered Into Following Such Presentation Between The Customer And RD&C.
3.3. If The Customer Is Of The Opinion That RD&C Presented Ideas And Concepts Which Have Already Been Known To Him Prior To The Presentation Of RD&C, He Shall Notify RD&C Of Such Knowledge Within 14 Days After The Day Of The Presentation By E-Mail Stating Relevant Evidence For The Alleged Prior Knowledge. In The Opposite Case, The Parties Assume That RD&C Has Presented Ideas And Concepts Which Have Not Been Known By The Customer. If Such An Idea Or Concept Is Used By The Customer, The Parties Agree That RD&C Contributed In This Respect.
4. Rights And Obligations Of RD&C
4.1. The Scope Of The Services To Be Provided Is Mentioned In The Service Description And/Or In The Specifications Of The Assignment. Within The Framework Determined By The Customer, RD&C Shall Be Entitled To Fulfill The Assignment Within Its Discretion.
4.2. RD&C Shall Be Entitled To Assign The Services It Is Responsible For, In Whole Or In Part, To Third Parties. Any Third Party Shall Be Paid Exclusively By RD&C. There Will Be No Direct Contractual Relationship Of What Kind So Ever Between The Third Party And The Customer.
4.3. During The Term Of This Contractual Relationship And For A Period Of Three Years After Termination Thereof, The Customer My Not Enter Into Any Kind Of Business Transactions With Persons Or Organisations RD&C Has Engaged To Perform Its Contractual Duties. In Particular, The Customer Shall Not Employ Said Persons Or Organisations To Render Consulting Services The Same Or Similar To Those Offered By RD&C.
4.4. Subject To Revocation By The Customer, The Customer Agrees To Receive Product-Related Information And Advertising Material By RD&C To The E-Mail Address Provided By The Customer.
5. Rights And Obligations Of The Customer
5.1. The Customer Shall Ensure That During The Performance Of The Assignment, Organisational Conditions In The Customer’s Place Of Business Allow The Fulfillment Of The Assignment In A Timely And Undisturbed Manner.
5.2. The Customer Shall Also Inform RD&C In Detail About Previously Conducted And/Or Currently Active Consulting Projects, Including Those In Other Areas Of Competency.
5.3. The Customer Shall Ensure That All Documents Needed For The Performance And Completion Of The Assignment Are Timely Submitted Without Specified Request And That RD&C Shall Be Informed About All Procedures And Conditions Which Are Important For The Fulfillment Of The Assignment. This Obligation Shall Also Apply To All Documents, Activities And Conditions That Become Known Or Available During The Work Of RD&C. As Far As The Provision Of Services Of RD&C Requires Access To The Computer Resources Of The Customer, The Customer Shall Ensure Unimpeded Access. If The Services Of RD&C Are Not Carried Out In Accordance With The Assignment Or Are In Delay, In Each Case Due To Incorrect, Incomplete And/Or Missed Information On The Part Of The Customer, The Customer Shall Bear Any And All Costs Arising Thereof And Shall Indemnify RD&C For Any Damages Arising In Connection Therewith.
5.4. It Is The Customer’s Responsibility To Ensure The Correctness Of The Information Provided For The Fulfillment Of The Assignment And To Verify That The Documents Made Available To RD&C Do Not Infringe Any Rights Of Third Parties, In Particular, But Not Limited To, Copyright, Trademarks, Patents, Patent Applications, Designs, Utility Models Or Any Other Intellectual Property Rights. RD&C Shall Not Be Obliged To Verify The Non-Infringement Of Any Such Rights Of Third Parties. In The Event RD&C Becomes Subject To Any Claim For The Infringement Of Any Of The Aforementioned Rights Of A Third Party, Customer Shall Be Obliged To Indemnify, Defend And Hold RD&C Harmless.
5.5. The Customer Is Not Entitled To Transfer, Assign Or Sublicense Rights Of Use, Claims Or Obligations Arising From The Contractual Relationship With RD&C To Third Parties, Including Affiliated Companies Of The Customer Without The Prior Written Consent Of RD&C.
6. Right Of Ownership And Copyright Protection
6.1. RD&C Shall Retain All Copyrights To Any Works Performed By RD&C And/Or By Persons Working For RD&C And/Or By Third Parties Engaged By RD&C (Including But Not Limited To Tenders, Analyses, Expert Opinions, Organization Charts, Programmes, Performance Descriptions, Drafts, Calculations, Drawings, Data Media, Presentations, Reports, Etc). During The Term Of This Contractual Relationship And After Termination Thereof, The Customer May Use The Results Of Any Such Work Exclusively For The Purposes Defined In The Assignment. Therefore, The Customer May Not Copy And/Or Distribute The Result Of Any Such Work Or Service Without The Prior Written Consent Of RD&C. The Unauthorized Reproduction/Dissemination Of Any Such Work Or Service Shall In No Event Result In A Liability – In Particular Regarding The Accuracy Of The Service Or Work – Of RD&C Towards Third Parties.
6.2. Changes Or Adaptions Of Services Or Works Of RD&C, Such As In Particular The Development By The Customer Or By Third Parties Acting On Behalf Of The Customer, Shall Require The Prior Written Consent Of RD&C And, If Such Services Are Protected By Copyright, Of The Author.
6.3. The Use Of Services Or Works Of RD&C, Which Goes Beyond The Purpose And Scope Of Use Originally Agreed – Irrespective Of Whether This Performance Is Protected By Copyright – Shall Be Subject To The Prior Written Consent Of RD&C. RD&C And The Author Shall Be Entitled To A Reasonable Separate Remuneration In Such Cases.
6.4. Unless Otherwise Agreed Between The Parties In Writing, RD&C Retains All Intellectual Property Rights, In Particular But Not Limited To Rights Of Use (Werknutzungsrechte), Ancillary Copyrights (Leistungsschutzrechte), Patents, Patent Applications, Designs (Muster), Utility Models (Gebrauchsmuster), Rights On Concepts And Ideas And Other Not Legally Protected Rights Regarding The Work Results And Creations To Be Created In The Course Of The Assignment, In Particular With Respect To All Works In Terms Of The Austrian Copyright Act (Urheberrechtsgesetz), As For Example Software, Applications, Texts, Graphics, Databases, Images, Layouts, Ideas, Concepts, Schemes, Logos, Sketches And The Like.
7. Remuneration And Accounting
7.1. The Remuneration Of RD&C Shall Be Agreed In The Assignment. All Fees Are Net Amounts And Do Not Include The Statutory Value Added Tax.
7.2. Following Fulfillment Of The Assignment, RD&C Shall Receive The Fees In Accordance With The Payment Terms Agreed Between The Customer And RD&C. RD&C Shall Be Entitled To Render Intermediate Accounts And To Demand Payments In Installments In Accordance With The Work Progress Made.
7.3. All Services Of RD&C Rendered In The Course Of The Assignment, Which Are Not Expressly Compensated By The Agreed Fee, Will Be Charged Separately. Any Cash Expenditures, Expenses, Travel Costs, Etc Shall Be Reimbursed To RD&C By The Customer Separately Upon Submission Of Appropriate Receipts.
7.4. Invoices, Amended Fees, Notices For Payment Etc Will Be Sent To The Email Address Most Recently Notified To RD&C By The Customer. The Amount Invoiced Shall Be Due And Payable To A Bank Account Named By RD&C Within 10 Business Days After The Date Of The Invoice In Euro Free Of Bank Charges Or Any Other Deductions.
7.5. In The Event That The Assignment Agreed Upon Is Not Completed Due To Reasons On The Part Of The Customer Or Due To A Premature Termination Of The Contractual Relationship By RD&C For Good Cause, RD&C Shall Be Entitled To Claim Payment Of The Entire Agreed Fee. The Offset Provision Of Section 1168 Of The Austrian Civil Code (Abgb) Is Excluded.
7.6. In The Event Of Late Payment By The Customer, RD&C Shall Be Entitled To Charge Interest At The Rate Of 8 % P.A. Above The Relevant Base Interest Rate Of The European Central Bank Following Putting Customer On Notice And Granting An Additional Payment Period Of 10 Business Days. In Case Of Late Payment The Customer Is Obliged To Bear All Costs Incurred By RD&C Due To The Putting On Notice And Enforcement Of The Outstanding Payments. The Assertion Of Further Claims Remains Unaffected Hereby.
7.7. In The Event Of Late Payment By The Customer, RD&C Shall Not Be Obligated To Provide Any Further Services. The Assertion Of Further Claims Resulting From Default Of Payment Shall Remain Unaffected Hereby.
7.8. Any Set-Off Against Claims Of RD&C Is Excluded.
7.9. RD&C Shall Be Entitled To Transmit Invoices To The Customer Also Electronically. The Customer Agrees Explicitly To Accept Invoices Transmitted Electronically By RD&C.
8. Warranties
8.1. The Warranty Period Shall Be Limited To Six Months After Completion Of The Serivce By RD&C.
8.2. It Is The Customer’s Responsibility To Claim Any Defects Of The Service Immediately After Receipt Of The Service, At Least Within Five Business Days After Detection Thereof In Written Form With Details And Description Of The Named Defect. In Any Other Event, The Service Shall Be Deemed As Approved And The Assertion Of Warranty And Damage Claims As Well As The Right To Contest This Contract Due To Error Or Defects Shall Be Excluded.
8.3. In The Event Of A Justified And Timely Notice Of Any Defect, The Customer Primarily Has The Right To Improvement Of The Service Provided By RD&C. RD&C Will Remedy The Defects Within A Reasonable Time, Whereby The Customer Shall Enable RD&C To Undertake All Measures Necessary For Examination And Remedy Of The Defects. If RD&C Culpably Fails To Improve The Defect Within A Reasonable Period Of Time, The Customer Is Entitled To A Proportionate Reduction Of The Price. Costs Arising By Using Third Parties Despite Willingness Of RD&C To Remedy The Defect Have To Be Borne By The Customer.
9. Liability / Damages
9.1. RD&C Shall Be Liable To The Customer, Irrespective Of The Legal Ground (Pre-Contractually, Contractually, Extra-Contractually) For Damages – With The Exception Of Personal Injury – Only To The Extent That Any Such Damages Are Caused By The Gross Negligence Or The Wilful Misconduct Of RD&C. This Limitation Of Liability Also Applies To Damages Caused By Third Parties Employed By The Customer.
9.2. The Customer Shall Furnish Evidence Of RD&C’s Fault.
9.3. RD&C Shall Not Be Liable For Indirect Damages, Loss Of Profit, Loss Of Interest, Lost Savings, Consequential And Pecuniary Damages Or Damages Resulting From Third Party Claims.
9.4. The Customer Shall Be Obligated To Indemnify, Defend And Hold RD&C Harmless From And Against Any And All Claims Asserted By Third Party.
9.5. Claims For Compensation Of The Customer Shall Lapse In Six Months After Knowledge Of The Damage And The Damaging Party, However In Any Case In Three Years After The Occurrence Of Damage.
10. Term And Termination
10.1. The Term Of The Contract Between The Parties Shall Be Defined In The Respective Assignment.
10.2. RD&C Is Entitled To Terminate The Assignment With Immediate Effect For Good Cause. Notice Of Termination Must Be Given In Writing (E.G. Letter Or E-Mail To The Last Known Address Or Email Address Provided By The Customer), Whereby Point 13.4. Shall Apply. The Parties Agree That Such Good Cause Shall Exist In Particular, But Not Limited To, If
10.3. The Execution Of The Assignment Is Impossible Due To Reasons On The Part Of The Customer Or, In The Event The Fulfilment Of The Assignment Is Delayed, Such Delay Is Extended Despite A Written Notice And Setting A Period Of Grace Of 10 Business Days;
10.4. Despite Written Notice And Setting A Period Of Grace Of 10 Business Days, The Customer Breaches Major Provisions Of An Assignment, For Example If The Customer Is In Default With A Payment Or If The Customer Infringed Other Major Provisions Of These General Terms And Conditions;
10.5. There Are Reasonable Doubts Regarding The Customer’s Credit Standing, Even Though Insolvency Proceedings Have Not Been Opened And The Customer Fails To Make An Advanced Payment Or To Furnish Suitable Security At RD&C’s Request.
10.6. In Case Of A Justified Termination Of The Contract By RD&C Or In Case Of An Unjustified Termination Of The Contract By The Customer In Accordance With Item 7.5, RD&C Shall Be Entitled To The Payment Of The Entire Agreed Fee.
10.7. The Customer Is Entitled To Terminate An Assignment For Good Cause With Immediate Effect. Any Such Termination Shall Be Made In Writing. Such Good Cause Shall Constitute, In Particular, But Not Limited To, If RD&C Commits A Material Breach Of The Assignment Or Of These General Terms And Conditions And Does Not Remedy Such Breach Within 10 Business Days After Receipt Of The Customer’s Notice Relating To Such Breach.
10.8. Any Services Already Performed Or Costs Already Incurred By RD&C Up To The Date Of Termination Shall Be Paid By The Customer In Full, Even In Case Of Termination For Good Cause.
11. Confidentiality
11.1. RD&C And The Customer Shall Be Obliged To Keep Absolutely Confidential All Business Matters Of The Other Party That Come To Their Knowledge Directly Or Indirectly, In Particular, But Not Limited To, The Respective Trade And Company Secrets And Any Other Information Concerning The Object Of The Company, Scope Of Business And Business Success Of The Other Party. The Parties Shall Also Take Appropriate Measures To Prevent A Third Party Access To Confidential Information.
11.2. RD&C Shall Not Be Obliged To Maintain Confidentiality Towards Any Person Working For RD&C And Representatives Of RD&C. RD&C Is Required To Obligate Such Persons To Maintain Complete Confidentiality.
11.3. Further The Parties Shall Be Obliged To Immediately Notify The Other Party In Case Of A Statutory Mandatory Disclosure Of Information Received, So That The Other Party Can Make Appropriate Regulations And Precautions To Maintain The Greatest Possible Confidentiality Of The Information Concerned.
11.4. The Obligation To Maintain Confidentiality Extends To The Entire Content And Scope Of The Assignment As Well As All Related Information And Circumstances And Shall Persist 10 Years Beyond The End Of An Assignment.
12. Applicable Law, Place Of Jurisdiction
12.1. All Agreements Made Between RD&C And The Customer Shall Be Governed By And Construed Under The Laws Of Austria Without Giving Effect To Its Conflict Of Law Rules.
12.2. The Parties Agree That The Commercial Court Competent For Vienna, Inner City (Wien Innere Stadt), Austria, Shall Have Jurisdiction To Hear And Determine Any Suit Action Or Proceedings And To Settle Any Disputes Which May Arise Out Of Or In Connection With The Legal Relationship Between RD&C And The Customer And, For Such Purposes, Irrevocably Submits To The Jurisdiction Of Such Courts.
13. Final Provisions
13.1. Each Party Shall Bear Any Taxes, Duties Or Fees Arising From The Contractual Relationship.
13.2. Any Changes, Amendments And Additions Of This General Terms And Conditions Agreed Between The Parties Are Only Valid If Made In Written Form. This Shall Also Apply To Any Agreed Waiver Of The Written Form Requirement. In Case Of Conflict Between These General Terms And Conditions And Deviant Written Agreements Between The Parties, The Provisions Of Deviant Agreements Shall Prevail.
13.3. In The Event Any Of The Terms Or Any Part Of These General Terms And Conditions Is Rendered Void Or Unenforceable By Any Legislation To Which It Is Subject Or By Any Rule Of Law, It Shall Be Void And Unenforceable To That Extent And No Further, I.E. Not Affecting The Remaining Parts Of These General Terms And Conditions.
13.4. Except As Otherwise Provided In This General Terms And Conditions, All Notifications In Connection With This General Terms And Conditions Have To Be In Writing And Either By Personal Transfer, By Courier, By Registered Letter, By Facsimile Or By E-Mail To The Respective Party. A Notice Shall Be Deemed Given And Receipt In The Following Cases: (I) At The Time Of Delivery, If Notice Was Delivered Personally, (Ii) 5 Business Days (Means Any Day On Which Commercial Banks Are Usually Open To Customers; Hereinafter Referred To As “Business Day“) After Posting, If The Notice Has Been Sent By Post (Registered Letter), (Iii) After Receipt Of Transmission Confirmation, If Faxed, (Iv) After Receipt Of A Non-Automated Reading Confirmation, If Mailed And (V) On The Next Business Day, If The Notice Was Sent By Courier Guaranteeing Next-Day Delivery.
13.5. The Term “Third Party” Within The Meaning Of These General Terms And Conditions Shall Mean Any Natural Or Legal Person, Which Is Difference To The Parties In A Legal Sense, Even If Legal And/Or Economic Relations Should Exist To Such A Person.
13.6. Neither Party Is Allowed To Transfer The Obligations Under These General Terms And Conditions Without The Explicit Written Consent Of The Other Party To Any Third Party.