Conditions
1. General
1.1. Unless otherwise agreed in writing, these general terms and conditions (hereinafter referred to as GTC) apply to all work or professional services and services commissioned by the customer.
1.2. Contractual terms that contradict these GTC, in particular in the Contractor's terms and conditions or contract forms, are always deemed to have been waived, even if the Contractor's General Terms and Conditions or contract forms contain different provisions, e.g. B find the inevitability of the relevant general terms and conditions or contract forms of the contractor.
2. Contract language, contact persons
2.1. General
2.1.1. The contract language is German.
2.2. contact persons
2.2.1. Before placing the order, the contractor must inform the client in writing of the first and last name of the employee responsible for carrying out the work that is the subject of the order; this must be fluent in spoken and written German.
3. Correspondence
3.1. Delivery address of the client
3.1.1. Unless the customer notifies the contractor in writing of a different postal address and no other delivery address is specified in the contract, all correspondence intended for the customer must be sent to the address provided by the customer. The contractor is obligated to notify changes to his delivery address immediately, otherwise notifications and declarations by the customer are deemed to have been received on the day they were sent to the last known address of the contractor.
4. Cooperation at the place of performance
4.1. Compliance with legal and regulatory requirements
4.1.1. The contractor must ensure that the legal and official provisions, orders and decrees are observed. The contractor shall indemnify and hold the client, its organs and other agents completely harmless in the event of violations of the law by him or his employees.
5. staff
5.1. General
5.1.1. The contractor must provide the services incumbent on him with qualified personnel of his choice, who are to be deployed in sufficient numbers, and obtain any official permits required for the deployment of personnel.
5.2. Employment Contract Law Adaptation Act, Foreigners Employment Act
5.2.1. The contractor must comply with the obligations resulting from the Employment Contract Law Amendment Act and the Foreigners Employment Act and must indemnify and hold harmless the client and its bodies with regard to any claims. Upon request, the contractor must provide the customer with information about compliance with these provisions and orders and prove compliance with them.
6. Implementation documents, orders and instructions
6.1. General
6.1.1. The contractor may only use the documents, data and information provided to him by the client or third parties in connection with the contractual service provision for the fulfillment of the contract. All documents handed over to the contractor by the client remain the property of the client and are to be returned to the client upon first request and waiving any right of retention or other right to refuse surrender.
6.2. Examination of the documents, orders and instructions/guarantee of a functional complete service/determination and examination of other circumstances
6.2.1. The contractor must immediately examine the documents submitted to him as well as the orders and instructions of the customer in detail and notify the customer immediately in writing of any defects and concerns about the intended type of execution and other circumstances affecting the deliveries and services that are recognizable when using due care (special warning obligation ). In this case, the contractor must also provide the client with information or suggestions for rectification or improvement within a reasonable period of time without separate payment. The obligation to check and report (special warning obligation) is not restricted by the need to call in special experts.
7. Performance
7.1. General
7.1.1. The contractor must carry out or render the deliveries and services in accordance with the contract; In addition to the legal and official regulations and orders, he must also comply with the generally recognized rules of technology and his trade as well as all manufacturer, processing, processing and assembly guidelines, ÖVE guidelines, regulations and guidelines of the Technical Monitoring Association (TÜV) and has if necessary, to ensure comprehensive fire protection.
7.2. Compensation for all deliveries and services
7.2.1. The contractor is responsible for carrying out or providing the deliveries and services. Unless otherwise agreed in writing, all deliveries and services incumbent on the contractor are fully settled with the order amount.
7.3. Correction, improvement, addendum
7.3.1. Deliveries and services that are defective or otherwise deviate from the contract must be rectified or improved by the contractor immediately at the request of the customer, or the missing items must be added.
7.4. More or less services
7.4.1. The client is entitled - even after the conclusion of the contract - to change the type, scope and quantity of agreed deliveries and services or to have them carried out in part by third parties or to provide them himself, without the contractor being entitled to any kind of compensation for this. The application of § 1168 ABGB, which provides for this if the contractor has a reasonable claim for compensation, is expressly excluded.
7.5. Exclusion of retention of title
7.5.1. Any reservation of ownership rights on the part of the contractor, including the validity or effectiveness of a reservation of ownership that is (only) to be passed on by the contractor, is expressly waived.
8. Warranty
8.1. General
8.1.1. Irrespective of further guarantees, liabilities and the like, the contractor guarantees that his services have the properties expressly stipulated in the contract, otherwise promised and at least the usually expected properties and in particular the generally recognized rules of technology, the legal and official regulations, all manufacturer, Processing, processing and assembly guidelines, ÖVE guidelines, as well as the regulations and guidelines of the Technical Monitoring Association (TÜV) and have a CEE certification (Certification of Electrical Equipment). The warranty is not limited by the activities of the customer, in particular his monitoring and testing activities.
8.1.2. The contractor guarantees the customer that any item of his deliveries and services shall become the property of the customer free of third-party rights, especially free of copyrights and ancillary copyrights and industrial property rights of all kinds.
8.2. Relevant point in time, assumption in the event of a complaint, exclusion of the obligation to complain
8.2.1. The warranty includes all defects that exist at the time of acceptance by the client. If a defect is reported within the relevant warranty period, it is presumed that it was present at the time of acceptance by the customer; however, there is no commercial or other obligation to give notice of defects. If the customer has a commercial or other obligation to give notice of defects by law, this is deemed to be expressly waived.
8.3. instruction
8.3.1. If a defect is due to a special instruction of the client, the contractor is released from the warranty to the extent of the effect of this instruction if he had informed the client of his concerns in accordance with the contract and the client nevertheless insisted on the execution according to the instruction.
8.3.2. If the contractor has committed to a specific delivery or service or to a specific type of execution, neither a warning nor an instruction from the client releases him from his performance, guarantee, warranty and compensation obligations.
8.4. warranty period
8.4.1. If the customer has to provide a guarantee to a third party, he can demand a guarantee from the contractor even after the relevant statutory guarantee period has expired; in this case, however, the claim is limited to the amount of capital, interest and costs incurred. This claim must be asserted within twelve months of the fulfillment of one's own warranty obligation; § 933b paragraph 2 sentence 1 and sentence 2 ABGB do not apply.
8.5. Attempt to rectify defects/completed rectification of defects/acknowledgment of defects and damage
8.5.1. With the completed attempt to remedy the defect or the completed remedy of the defect, the contract with regard to the delivery or service affected by the defect reverts to the stage before acceptance; the warranty period and all other periods that have already begun to run begin again in full with regard to the delivery or service affected by the defect.
8.5.2. The attempt to rectify the defect, like the completed rectification of the defect, represents an express acknowledgment by the contractor to the effect that not only the defect and the contractor's obligation to the client to rectify it is expressly recognized, but also the liability of the contractor to the client for already Existing damage of the same or similar nature as well as future damage of the same or similar nature is expressly recognized.
9. Liability
9.1. General
9.1.1. The contractor assumes unlimited responsibility and liability for the contractual execution and the contractual condition of the deliveries and services or contractually owed services.
9.2. joint liability of third parties
9.2.1. Any joint liability of third parties does not release the contractor, who is jointly and severally liable for the entire damage, from the primary obligation to compensate.
9.2.2. The contractor must take out adequate insurance for liability arising from or in connection with this contract and, at the request of the customer, must provide evidence of the scope and the existing insurance cover at any time.
9.2.3. A limitation of the primary obligations of the contractor towards the client (e.g. warranty and damage compensation) is not associated with this.
9.3. indemnification and indemnification
9.3.1. If claims are made against the customer by a third party due to events, actions or omissions for which the contractor is responsible or for which he is otherwise responsible (including immissions), the customer can choose to have this claim made at his own risk and expense of the contractor or request the contractor to ward off the claim at his expense and risk. In any case, the contractor shall fully indemnify and hold the client harmless from the claim, its consequences and costs, including expert costs and legal costs.
9.4. Exclusion of the liability of the customer, default interest limitation
9.4.1. The liability of the customer, insofar as it is given at all according to the other contractual provisions, is limited to intent and gross negligence - unless mandatory legal provisions oppose this. Any liability of the client for indirect damage, indirect damage, consequential damage and loss of profit is excluded at all - unless mandatory legal provisions oppose this.
9.4.2. Any default interest to be paid by the client – regardless of the legal title – is limited to 4% pa. Different provisions in the general terms and conditions or contract forms of the contractor are expressly declared invalid by the present agreement.
10. Default
10.1. General
10.1.1. Default occurs if a delivery or service is not provided at the contractually stipulated or legally stipulated time, at the appropriate place or in the stipulated manner.
10.2. Insist on performance/withdrawal
10.2.1. If the contractor is in default with his deliveries or services or one of the same, the client can either insist on contractual performance or, setting a reasonable grace period in writing, subject to claims for damages, declare withdrawal from the contract in the event that the contractual performance is not within the grace period is provided.
10.2.2. In the event of non-compliance with the agreed deadlines and late fulfillment, the contractor will be deducted 0.5% of the order amount per working day, but a maximum of 5%. Furthermore, all verifiable costs arising from the delays and verifiable claims for damages asserted from the title by third parties against the client will be passed on to the contractor.
11. Fees/Prices
11.1. Unit prices and flat rates
11.1.1. Any agreed unit prices and flat rates are fixed and unchangeable (fixed prices); Above all, changes in price bases such as wage or salary rates, transport costs, prices for materials, equipment and substances, customs duties, taxes, social security contributions and the like, unless expressly provided otherwise in the specific contract, have no effect on the fee. The same applies to difficulties caused by winter or bad weather or other circumstances. Price increases recognized by the state or otherwise have no effect on the fee.
11.2. bills
11.2.1. Invoices and requests for advance payments are to be submitted to the client in duplicate. The invoices are to be numbered consecutively by the contractor and issued in an easily verifiable form in accordance with the payment plan according to the progress of the work.
11.2.2. The services provided must be described briefly and completely and, if billing is based on unit prices or other items, listed in the order of the items in the service specifications and/or other breakdowns in such a way that the invoice can be easily checked. The documents required for easy checking (billing plans, quantity calculations, delivery notes, etc.) must be enclosed and made available to the client on request in electronic form (CD-ROM, EXCEL file) in such a way that invoice checking and correction can be carried out directly and without separate Input on the invoice data or the itemized item data can be accessed and these can be corrected electronically.
11.2.3. Invoices submitted by the contractor must contain an order number provided by the client when the order was placed. If this order number, which is to be provided by the customer upon request, falls, the invoice is to be regarded as defective within the meaning of point 11.3 of the General Terms and Conditions.
11.3. Procedure in the event of defective accounting
11.3.1. If an invoice is defective, if documents are missing or if the contractor is not or not yet entitled to issue an invoice, the client can return the invoice to the contractor. If the client decides not to return the invoice to the contractor, this is only considered to have been submitted when all the requirements for proper accounting have been met.
11.4. Terms of payment and discounts
11.4.1. The verification and payment period is 30 days. Corrections are deemed to have been accepted by the contractor if he does not raise detailed written objections to the client within four weeks of receipt of the corrected invoice by the contractor.
12. Withdrawal from the contract, cancellation
12.1. Cancellation by the client
12.1.1. The client is entitled to declare immediate withdrawal from the contract for important reasons; such reasons exist in particular if
12.1.2. reorganization proceedings have been opened on the contractor's assets and this jeopardizes the contractual fulfillment of the order by the contractor,
12.1.3. bankruptcy has been opened on the assets of the contractor or an application for bankruptcy has been rejected due to a lack of assets to cover costs and this jeopardizes the contractual fulfillment of the order by the contractor,
12.1.4. Circumstances exist which obviously make it impossible to fulfill the order in accordance with the contract, but in any case force majeure for a considerable period of time;
12.1.5. the contractor has violated an essential contractual provision or repeatedly violated other contractual provisions,
12.1.6. the contractor has taken illegal actions or omissions that violate the rights of the client.
12.2. Cancellation by the contractor
12.2.1. The contractor is entitled to declare immediate withdrawal from the contract if
12.2.2. bankruptcy proceedings have been opened against the customer's assets and as a result the fulfillment of the order no longer appears to be guaranteed
12.3. written form
12.3.1. Any withdrawal from the contract must be declared in writing.
12.4. Settlement upon withdrawal
12.4.1. In the event of withdrawal, partial deliveries and partial services that have already been provided must continue to be treated, invoiced and compensated according to the contractual provisions. Partial deliveries and partial services that cannot be used separately by the client are to be restored to their previous status at the risk and expense of the contractor.
12.4.2. If the circumstances that led to the withdrawal are in the sphere of the contractor, he is obliged to reimburse the customer for the additional costs incurred by the completion of the deliveries and services and to advance them appropriately.
12.5. Exclusion of the application of § 1168 ABGB
12.5.1. The application of § 1168 ABGB is also expressly excluded in the event of withdrawal as well as for any other case of the omission of the (partial or complete) execution of deliveries and/or (service) performances of the contractor; The contractor is only entitled to remuneration (or compensation for this) to the extent that the services incumbent on him have actually been carried out. The further restrictions/exclusions of the applicability of § 1168 ABGB (cf. point 7.4) remain unaffected.
12.6. cancellation
12.6.1. The provisions of 12.4, 12.5 and 12.6 apply mutatis mutandis in the event of partial or complete cancellation of deliveries and/or services by the client.
13. Jurisdiction/Continuation Clause/Governing Law
13.1. Jurisdiction Agreement/Exclusive Venue
13.1.1. For all disputes arising from or in connection with this contract, including those regarding its validity, fulfillment, violation, termination and their consequences, the contracting parties expressly agree on the exclusive jurisdiction of the court in Vienna that is locally responsible for the 1st district of Vienna and is competent in each case.
13.2. Continuation and Surrender Clause
13.2.1. In the event of disputes about the provision of services or their acceptance and payment, even as long as a dispute is pending in court, the provision of services by the contractor, if it is still in progress, may not be interrupted or impaired in any way.
13.2.2. Disputes about the provision of services, even as long as a dispute is pending in court, do not entitle the Contractor to collect or dismantle delivered, performed or assembled facilities, machines, devices, systems, materials, substances and other objects without authorization.
13.3. applicable law
13.3.1. The substantive law of the Republic of Austria applies with the express exclusion of further reference, i.e. without reference standards. The applicability of the UN Convention on International Commercial Sales is expressly waived.
14. Miscellaneous
14.1. confidentiality
14.1.1. The contractor must treat confidentially the documents, data and information of which he has gained knowledge on the basis of or in connection with the contract; disclosure to third parties or use for purposes other than the execution of the order placed with the contract is not permitted.
14.2. Nullity or ineffectiveness of individual provisions
14.2.1. The nullity or ineffectiveness of individual contractual provisions or parts thereof does not affect the effectiveness of the remaining contractual provisions; in this case, those provisions shall be deemed to have been agreed which (legally compliant) come closest to the purpose of the void or ineffective provisions (valid reduction).
14.3. exclusion of set-off
14.3.1. The contractor is not entitled to offset claims from or in connection with the specific contract against claims of the client from or in connection with the specific contract.
14.4. written form
14.4.1. Changes and additions to this contract must be made in writing to be legally effective (also by sending the signed document via fax). This also applies to any departure from the written form.