General terms and conditions

All contracts concerning the provision of services by Lead Innovation Management GmbH (hereinafter “Lead”) to an entrepreneur within the meaning of Section 1 of the Austrian Commercial Code (UGB) (hereinafter “Client”) are subject—notwithstanding any deviating written agreements in individual cases—exclusively to these General Terms and Conditions (hereinafter “GTC”) in the version valid at the time of conclusion of the contract.

The GTC also apply to all future contracts concluded between Lead and the Client regarding the provision of services by Lead to the Client, even if no express reference is made to them in each case. These GTC supersede all other agreements and general terms and conditions regarding the provision of services by Lead to the Client to which Lead has not expressly agreed in writing.

Any deviations from these GTC require Lead’s written consent in each individual case.

By placing an order with Lead, the Client fully agrees to these GTC in their currently valid version. Persons placing orders with Lead on behalf of the Client declare that they are authorized to accept these GTC on behalf of the Client.

“Services” as used in these Terms and Conditions refer to all services of any kind offered by Lead, including, but not limited to, services related to management consulting, research, and market research. The specific content and scope of services to be provided by Lead are set forth in detail in the respective individual contract.

In the event of any conflict between the provisions of a contract validly concluded between Lead and the client and these General Terms and Conditions, the provisions of the contract shall prevail. However, this shall not apply to the extent that the provisions of the relevant contract are subject to a written form requirement provided for in these General Terms and Conditions and such requirement has not been complied with; in such a case, the provisions of these General Terms and Conditions shall take precedence.

When Lead makes an offer to the client, that offer - unless it expressly indicates Lead’s immediate and unconditional intention to be bound (e.g., through the wording “Offer valid until” or the notation “Legally binding offer”) – be classified only as an invitation (invitatio ad offerendum) to the client to submit a legally binding offer to conclude a contract for the provision of services by Lead. In such cases, it is the client who submits a legally binding offer by placing a corresponding order (in each case, an “Order”) with Lead. In such cases, a contract is therefore only concluded upon Lead’s acceptance of the client’s respective order. Acceptance may occur through the transmission of a written order confirmation (an email is sufficient) or through Lead’s actual commencement of the performance of the commissioned services.

Lead is not obligated to accept an order placed by the client and may therefore refuse to accept orders at any time without providing a reason.

If the order confirmation or the content of the services actually provided by Lead differs from the client’s order, such deviation shall be deemed to have been approved by the client unless the client objects in writing within a period of no more than 5 business days from the date on which the client becomes aware of the deviation. The client bears the full burden of proof regarding the timeliness of any such objection.

The term of a contract generally ends upon the expiration of the agreed-upon term or - if no such term is specified - upon the parties’ full performance of the agreed-upon services. Ordinary termination is excluded in this regard.

If a framework agreement is concluded between the parties, it shall be deemed to have been concluded for an indefinite period, whereby each party is granted the right to terminate the framework agreement as of the last day of the month with four weeks’ notice (ordinary termination). The validity of individual contracts already effectively concluded under a framework agreement until its termination remains unaffected by this.

The parties’ right to terminate continuing obligations at any time for good cause, prematurely and without observing a notice period or a termination date, also remains unaffected (extraordinary termination).

Lead shall act in the client’s best interests and fulfill its respective performance obligations with the diligence of a prudent and conscientious businessperson.

Unless expressly agreed in writing in individual cases and unless the nature of the agreed services necessarily requires otherwise, all services owed by Lead shall be classified as pure services. Lead therefore assumes no liability for the achievement of a specific result and/or work product.

Lead is not obligated to verify the documents, data, and information provided by the Client for completeness or accuracy, nor to determine whether they are suitable for the intended purpose, infringe upon the rights of third parties, or violate legal provisions (e.g., the Unfair Competition Act, the Trademark Protection Act, plagiarism laws, copyright laws, etc.). Lead may fully rely on the correctness, accuracy, completeness, and harmlessness of all relevant documents, data, and information.

Lead will not examine any legal risks associated with the provision of contractual services (unfair competition, trademark protection, and the like) and assumes no duty of care and/or protection in this regard toward the client. In this context, Lead does not provide any legal expertise, and any liability of Lead for the lack of such expertise under § 1299 of the Austrian Civil Code (ABGB) or on any other legal basis is expressly excluded.

If the Client so desires, Lead will, upon separate instruction, engage suitable partners (in particular attorneys) to review the agreed-upon services and measures for their compliance with the Austrian Unfair Competition Act (UWG) and/or other legal provisions and to notify the Client in writing of any concerns. However, this requires a corresponding written order from the client issued in advance; the client shall bear in full all costs and expenses incurred in this connection, in particular the fees of the respective legal advisors, and shall indemnify and hold Lead harmless in this regard.

Lead is entitled to use vicarious agents in the provision of services.

Unless otherwise expressly provided for in the relevant contract, agreed service dates and deadlines are to be understood as mere guidelines. Lead will, however, make every reasonable effort to provide all services in accordance with these dates and deadlines.

If unforeseen events occur that are beyond Lead’s control and that impair or temporarily prevent the provision of services, Lead must notify the client immediately and shall be released from its contractual obligations for the duration of the respective event. In such cases, agreed service dates and deadlines shall automatically be postponed or extended by the duration of the effects of the respective event. Unforeseen events within the meaning of these Terms and Conditions include, in particular, cases of force majeure, which include, but are not limited to, pandemics and epidemics (including the COVID-19 pandemic) along with associated official measures, natural disasters, strikes, lockouts, border closures, business closures due to governmental orders, as well as the failure or delay of subcontractors. If the respective event lasts continuously for more than 120 days, the Client is entitled to terminate the affected contract without notice or a deadline or (in the case of obligations to perform) to withdraw from the affected contract without setting a further grace period. Any other claims by the client, in particular claims for damages, are excluded.

If the commencement of the performance of a service is delayed due to circumstances within the client’s sphere of influence, or if delays or interruptions occur during the performance of the service for such reasons, the agreed dates and deadlines shall be extended to a reasonable extent, even if they are, in exceptional cases, binding requirements. Other rights of Lead, in particular claims for damages due to loss of time, remain unaffected.

If the services are to be provided at the Client’s headquarters or premises, the Client must ensure that the organizational conditions allow Lead to provide the services without interruption. Furthermore, the Client must ensure that Lead receives all documents necessary for the provision of services in a timely manner - even without a separate request - and is immediately informed of all processes and circumstances related to and relevant for the performance of the contract, even if these become known only during the provision of services. 

Any subsequent requests by the client for changes and/or additions must be agreed upon in writing and shall extend the applicable service dates or deadlines accordingly. The fee owed by the client for the modified or additional services shall be specified in the respective supplementary agreement.

All costs and any additional expenses resulting from a subsequent change or adjustment to the contractually agreed scope of services shall be borne exclusively by the client.

The fee owed by the client for the provision of services is specified in the respective individual contract. Statutory sales tax will be charged in addition.

Should the purchase prices applicable to Lead increase after the conclusion of the contract, Lead is entitled to pass on this cost increase to the client in the form of an increase in the agreed fees, to the extent that it relates to the respective contract or affects its performance. Specifically, Lead is entitled to increase the fee agreed upon with the client by the same percentage by which the purchase prices applicable to Lead have increased. However, Lead may not adjust agreed fees (i) if Lead is at fault for the occurrence of the conditions for the fee increase or (ii) if and to the extent that the reasons for the fee increase arose during a period of subjective default on the part of Lead.

Furthermore, the agreed fee shall be indexed to the Consumer Price Index for 2020 published monthly by Statistics Austria, or to any index that replaces it. The index figure published for the month in which the contract is concluded shall serve as the reference value. Upward fluctuations in the index figure of up to and including 2% shall not be taken into account; however, if this threshold is exceeded, the entire change shall be fully taken into account. This margin must be recalculated each time it is exceeded, with the first index figure outside the currently applicable margin always serving as the basis for both the recalculation of the agreed fee and the calculation of the new margin. All changes are to be calculated to one decimal place. Indexation occurs automatically in each case and without the need for a separate notice from Lead. It takes effect at the start of the day on which the index figure triggering the value adjustment is announced and applies to all fees that are not yet due for payment on that day.

The client may not cancel an order without cause without Lead’s written consent, and such cancellation does not release the client from its obligation to pay for the entire agreed-upon service. Any applicable statutory set-off provisions, in particular those under § 1162b and/or § 1168(1) of the Austrian Civil Code (ABGB), do not apply. As long as the respective contract remains in effect, the client has the right to subsequently request from Lead the services not yet rendered (e.g., agreed-upon person-days), subject to a notice period of 3 months. Services that, as a result of an unjustified order cancellation by the client, are not called upon within one year of the conclusion of the contract, notwithstanding the provisions of this paragraph, shall lapse and may no longer be utilized. Section 1162d of the Austrian Civil Code (ABGB) does not apply.

Cost estimates provided by Lead are non-binding and are provided without warranty.

If fees, taxes, or other charges arise in connection with the provision of the respective service, the client shall bear these, as well as any transportation, travel, and delivery costs, and other out-of-pocket expenses of any kind incurred by Lead in the course of fulfilling the contract. The client shall reimburse Lead in full for the relevant amounts upon receipt of the corresponding invoice and shall indemnify and hold Lead harmless in this regard.

Unless otherwise specified in the respective individual contract, the payment term for invoiced amounts is 14 days from the date the client receives the invoice. In the event of late payment, statutory default interest pursuant to § 456 of the Austrian Commercial Code (UGB) shall be payable.

Any discounts, rebates, or other benefits granted shall automatically expire in the event of late payment by the client and may therefore not be claimed by the client.

Bills of exchange and checks are accepted only on the basis of a separate, express agreement, without any obligation to present them or file a protest, and only on account of payment.

In the event of a delay in payment (including a mere objective delay), the client shall pay a lump-sum amount pursuant to Section 458(1) of the Austrian Commercial Code (UGB) as compensation for any collection costs. If the client is subjectively in default, the client must also reimburse Lead for all reminder and collection fees exceeding this lump-sum amount, to the extent that they are reasonable and necessary for the appropriate legal pursuit of claims (Section 458, Sentence 2 of the Austrian Commercial Code (UGB), Section 1333(2) of the Austrian Civil Code (ABGB)). The assertion of other rights and claims by Lead remains unaffected. 

If deliverables are handed over to the client in connection with the performance of the contract, they shall remain the property of Lead until the agreed fee, including late payment interest and collection fees, has been paid in full.

For the duration of the retention of title, the Client is not permitted to make any legal dispositions regarding the relevant deliverables that could frustrate Lead’s retention of title; in particular, the deliverables may not be sold, pledged, transferred as security, leased, or otherwise made available to third parties for use.

If Lead grants the Client rights of use pursuant to Section 11 in connection with the performance of the respective contract, the Client is only entitled to use the deliverables in accordance with Section 11 after full payment of the agreed fee (including, if applicable, default interest and collection fees).

Unless otherwise agreed, all copyrights, utility model rights, and patent rights to the deliverables shall remain with Lead. Unless otherwise agreed in writing, Lead grants the client, solely for the duration of the engagement, a license to all services, work products, and creations related to or arising from the respective engagement, particularly to works as defined by the Copyright Act, utility model protection, and the Patent Act, including, in particular, all ideas, concepts, inventions, specifications, business plans, business models, texts, graphics, images, layouts, plans, sketches, advertising materials, films, drafts, designs, trademarks, etc. a right of use (license to use the work) limited to the Republic of Austria. The scope of this right of use is determined in each case by the purpose of the individual assignment or the individual measures. In the event that Lead grants the Client, by means of a written agreement, a right of use to the aforementioned services, work results, and creations that extends beyond the duration of the engagement and is limited to the Republic of Austria, the Client may, after termination of the contractual relationship, use the results of the services exclusively in accordance with and to the extent of the contract.

Unless otherwise agreed in writing, the Client is not authorized to modify or have modified the services, work products, and/or creative works, or any part thereof.

Unless otherwise agreed in writing, the Client is not authorized to grant sublicenses to third parties for the services, work products, and/or creative works, or any part thereof.

The Client undertakes to mark all work results and all copies with a clearly visible reference to Lead as the copyright holder. The specific form of the copyright notice requires a separate written agreement.

When utilizing the services of third parties, Lead shall ensure that appropriate agreements are concluded with such third parties to guarantee that Lead obtains the rights of use to these services within the meaning of this contractual provision.

Modifications to services, work results, and creations - particularly to works within the meaning of the Copyright Act, utility model protection, and the Patent Act - are permitted only with the consent of Lead or the author. Unless otherwise agreed upon in a contract or necessary for the performance of the contract, the Client is not authorized to reproduce and/or distribute a deliverable without the express consent of Lead or the author.

In the event of unauthorized use, the Client agrees to pay Lead reasonable compensation and, if Lead is at fault, additional damages within 14 days of Lead’s invoice date. Furthermore, in the event of unauthorized use of the deliverables, the Client agrees to fully indemnify and hold Lead harmless, regardless of fault. In this context, the Client shall, in particular, fully reimburse Lead for the reasonable costs of appropriate legal defense, including court and attorney’s fees.

In the event of late payment, Lead is entitled to demand the cessation of any use of the services provided.

Lead is entitled to use the client’s logo, product photos, and similar materials on its website, in other media published by Lead and/or used for advertising purposes, and in pitch materials for advertising purposes and as examples of reference projects, and to specify the subject matter and scope of the services provided to the client.

To the extent that Lead is liable for a specific result in accordance with these General Terms and Conditions and the relevant individual contract, Lead warrants that the results of the services will possess the contractually agreed characteristics. Beyond this, Lead makes no other warranties without an express written commitment, in particular regarding the specific suitability or usability of the results of the services.

The Client’s warranty claims and legal remedies are governed by § 932 of the Austrian Civil Code (ABGB).

Lead is liable for defects in a service result provided that such defects existed at the time of delivery to the Client and become apparent within 6 months from that date. Section 924 of the Austrian Civil Code (ABGB) does not apply. The Client’s rights under the warranty, as well as claims for a price reduction or termination of the contract, expire 6 months after delivery of the relevant service result to the Client.

Sections 377 et seq. of the Austrian Commercial Code (UGB) apply. Any notice of defects must be made in writing and is only timely if it is received by Lead within a maximum of fourteen days from the handover of the relevant service result to the client.

The Client is obligated to assist Lead in identifying and rectifying defects and to facilitate all necessary measures (such as access to premises, review of documents, etc.). If the Client fails to fulfill this obligation to cooperate, the Client may not claim any resulting delays in the rectification of defects and shall also be liable to Lead for any resulting disadvantages and damages.

Mere services are not subject to any warranty liability on the part of Lead.

Lead’s liability is limited to damages that can be proven to have been caused by Lead intentionally or, at the very least, through gross negligence. Liability for slight negligence is excluded unless there has been a breach of a material contractual obligation. The foregoing limitations of liability do not apply to compensation for personal injury. The application of the statutory rules on the reversal of the burden of proof pursuant to Sections 1297 et seq. of the Austrian Civil Code (ABGB) is expressly excluded.

Furthermore, Lead’s liability for damages caused by slight or gross negligence is in any case limited in amount to the respective order value (= net fee excluding ancillary costs).

Compensation for damages resulting from delayed delivery or delays in repair or replacement, consequential damages arising from defects, pure financial losses, lost profits, and damages to third parties is excluded in all cases—except in cases of intent.

Claims for damages must be asserted in court within one year of the client’s knowledge of the damage and the party responsible, failing which such claims shall be barred.

The Client may not set off claims against Lead against counterclaims of the Client that Lead has not acknowledged and/or that have not been legally established; nor may the Client exercise a right of retention without a legally enforceable title or on the basis of claims arising from legal transactions other than the contract in question.

The assignment of any claims of the Client against Lead to third parties is prohibited and legally ineffective, unless mandatory statutory provisions preclude this.

If the client is in a state of crisis, he must disclose this to Lead prior to the conclusion of the contract. For the purposes of these General Terms and Conditions, a client is considered to be in a state of crisis if and to the extent that (a) he is insolvent (Section 66 of the Insolvency Act); or (b) he is over-indebted (Section 67 of the Insolvency Act); or 
(c) insolvency or over-indebtedness is likely to occur; or (d) the client’s equity ratio (§ 23 URG) is less than 8% and the notional debt repayment period (§ 24 URG) exceeds 15 years.

In addition, the Client must immediately notify Lead in writing (email is sufficient) if circumstances arise that could give rise to reasonable concerns regarding the Client’s creditworthiness or its ability to properly meet all of its obligations as they become due. For the purposes of this provision, this includes, in particular, the following circumstances, provided they are foreseeable or have already occurred: (a) deterioration in the Client’s creditworthiness or probability of default as assessed by Kreditschutzverband (KSV) 1870 or comparable creditor protection associations, (b) technical over-indebtedness, (c) insolvency, (d) payment delays, (e) applications (by the client itself or by third parties) to initiate insolvency, restructuring, and/or reorganization proceedings regarding the client’s assets, (f) any refusals to open insolvency proceedings regarding the client’s assets due to lack of assets, and (g) rejection of a restructuring plan proposed by the client to its creditors.

If the client breaches its duty to disclose information, it shall be liable to Lead for all resulting disadvantages and damages.

For the purposes of these Terms and Conditions, a deterioration in the Client’s creditworthiness, debt situation, credit rating, and/or solvency is deemed material whenever it gives rise to objectively justified doubts as to whether the Client will be able to fully settle and fulfill its debts and obligations to Lead when they become due. A material deterioration is presumed, subject to rebuttal, if (i) the Client is more than 14 days in arrears with due payments and/or (ii) any of the cases listed in Section 15, subparagraphs (a) through (g), occurs.

In the event of a material deterioration in the customer’s creditworthiness, debt situation, creditworthiness, and/or solvency of the client, as well as in the event of reasonable grounds for suspicion suggesting the occurrence of such a material deterioration, Lead—subject to mandatory statutory provisions—is entitled to (a) declare the claims against the client arising under the respective contract due and payable with immediate effect, notwithstanding any agreed and to withhold any outstanding services until all affected, outstanding claims have been settled in full; and/or (b) to demand adequate security for the outstanding claims from the client (e.g., in the form of the granting of a lien or similar, at Lead’s discretion in each case) and/or (c) to declare immediate termination of the contract with the Client and to claim compensation for all disadvantages and expenses incurred by Lead as a result.

In the event of a dispute, as well as upon request by Lead, the Client must prove that no material deterioration in its creditworthiness, debt situation, credit rating, and/or solvency has occurred and that there are no reasonable grounds for suspicion suggesting the occurrence of such a material deterioration.

For all claims arising from the respective contractual relationship between Lead and the client, the place of fulfilment in the legal sense is Vienna, Inner City.

For all disputes arising from and/or in connection with a contract to which these General Terms and Conditions apply, the parties agree that the court with subject-matter jurisdiction over Vienna, Innere Stadt, shall have exclusive jurisdiction. However, Lead remains entitled to bring an action against the client, at its discretion, before the court with subject-matter jurisdiction over the location of the client’s registered office.

All contracts to which these General Terms and Conditions apply are governed by Austrian law. The UN Convention on Contracts for the International Sale of Goods and the conflict-of-laws provisions of private international law are expressly excluded.  

Any commitments made by Lead or any amendments to the relevant contract or these Terms and Conditions must be confirmed in writing by Lead in each individual case in order to be legally binding. This also applies to any waiver of this written form requirement.

Lead shall send notices to the Client at the address most recently provided by the Client. If the Client fails to notify Lead of a change of address at least 14 days in advance, notices sent to the original address shall be deemed to have been received by the Client two days after dispatch, regardless of whether the Client actually receives them or not.

Lead is entitled to send invoices to the Client in electronic form. The Client expressly agrees to the sending of invoices in electronic form.

If any provision of these Terms and Conditions or of the relevant individual contract is or becomes legally ineffective, invalid, and/or void, this shall not affect the legal validity of the remaining provisions. In such a case, the legally ineffective, invalid, and/or void provision shall automatically be replaced by a provision that is legally effective and valid and that, as far as possible and legally permissible, most closely approximates the economic effect of the replaced provision.

The Client agrees to comply with applicable national and EU data protection regulations and to take appropriate measures to ensure that these regulations are not violated in the course of performing this agreement.

The Client agrees to treat as strictly confidential all information and documents that have come to its knowledge or may come to its knowledge in connection with the negotiation, conclusion, and/or performance of the relevant contractual relationship, as well as Lead’s trade and business secrets (hereinafter “Confidential Information”), regardless of whether such information is disclosed orally, in writing, electronically, or in any other form.

The Client may use Confidential Information exclusively within the scope of and for the purposes of executing the respective contractual relationship. The Client may disclose Confidential Information to its own employees provided that and to the extent that (i) the persons concerned must have knowledge of the respective information to ensure proper contract execution and (ii) the respective persons have demonstrably undertaken in advance to maintain confidentiality regarding the Confidential Information disclosed to them to the same extent as the Client. Furthermore, the Client may disclose the Confidential Information to third parties only with Lead’s express prior written consent.

The confidentiality obligations set forth herein shall continue in full force and effect, without any geographical, temporal, or other restrictions, even after the termination of the respective contractual relationship.

There is no breach of the Client’s confidentiality obligations if and to the extent that the relevant Confidential Information (i) was already generally known to the public at the time of disclosure by the Client through no fault of the Client, (ii) was already lawfully known to the Client prior to disclosure by Lead without any breach of the relevant confidentiality obligations by the Client or a third party, or (iii) the Client is under a legally binding obligation to disclose the Confidential Information to courts or other authorities.