GENERAL BUSINESS CONDITIONS
1. Validity of the general terms and conditions and any deviations
- The following general terms and conditions are valid for all current and future contracts between the client and the contractor.
- Deviations from these terms, and in particular conditions specified by the client, are only valid when expressly accepted by the contractor in written form.
- For ongoing business, these general terms and conditions will apply to future contracts even where not repeatedly indicated by the contractor.
2. Offers, supplementary agreements
- Unless otherwise stated, all aspects relating to offers made by the contractor are non-binding, including the fees.
- Where the contractor’s order confirmation contains changes to the contract, then these changes are deemed approved by the client where the client makes no immediate written statement to the contrary.
- Agreements and any subsequent changes to these agreements must be made in written form.
3. Order confirmation
- The nature and scope of the agreed services shall be as specified by the contract, authorization and these general terms and conditions.
- Alterations and supplements to the contract must be confirmed in writing by the contractor to become subject to this contractual relationship.
- The contractor is obliged to properly perform the contract for the order in compliance with the generally accepted technical standards and the principles of sound financial management.
- The contractor has the right to engage other duly authorised persons to fulfil the contract, and these persons may place orders on behalf and for account of the client. However, the contractor is obliged to provide the client with written notice of this intention, and the client will be given the option to object to such third party authorizations within 10 days.
- The contractor also has the right to engage other duly authorized subcontractors to fulfil the contract, and they may place orders on behalf and for account of the client. However, the contractor is obliged to provide the client with written notice of their intention to use a subcontractor, and the client will be given the option to object to the use of a subcontractor within one week; in this case the contract must be fulfilled by the contractor themselves.
4. Warranty and damages
- Warranty entitlements can only be pursued after notice of defects is served in written form within 14 days from the performance or part performance of the order.
- Claims for rescission or price reduction are excluded. Claims for corrections or making up deficiencies must be met by the contractor within a reasonable period, in general, one third of the period agreed for the execution of the order. Claims for damage due to delayed performance cannot be made during this period.
- The contractor is only liable to the client in the case of gross negligence.
5. Withdrawal from the contract
- Withdrawal from the contract is only permissible for important reasons.
- Where the contractor is delayed in performing the agreed service, then the client may only withdraw from the contract after a reasonable period of grace; the notification of a grace period must be conveyed by registered post.
- Where the client delays in providing a part performance or an agreed co-performance which makes it impossible or substantially hinders the contractor in executing the order, then the contractor is entitled to withdraw from the contract.
- Where the contractor is entitled to withdraw from the contract then the contractor retains their claim to the agreed fee in its entirety, also where there is an unjustified withdrawal on the part of the client. Furthermore §1168 ABGB (Austrian Civil Code) applies; where the client is entitled to withdraw, the client must pay the fees for the services performed up to that time.
6. Fee, Scope of Services
- Where not otherwise specified, all fees are in EURO.
- The stated fees are exclusive of purchase tax (value added tax) which must be paid separately by the client.
- The client is not entitled to offset payments with any counterclaims for whatever reason.
- Unless otherwise agreed, non-binding fee calculations recommended by the contractor’s industry association form the basis for the contract.
- Unless otherwise agreed, fees must be paid within 30 days from the date of issue of the submitted invoice. Delays in payment are subject to default interest plus compound interest to the sum of 9.2% over the annual base rate.
7. Place of fulfilment
- The place of fulfilment for all services is the registered headquarters of the contractor.
- The contractor is obliged to treat all information provided by the client as confidential.
- The contractor is also obliged to keep their planning activity confidential if, and for as long as, the client has a justified interest in maintaining this confidentiality. After completion of the contract, the contractor is entitled to publish for advertising purposes the work that is the subject matter of the contract, either as in whole or in part, where this has not been otherwise agreed in the contract.
9. Protection of the plans
- The contractor reserves all rights and interests in the documentation (in particular plans, brochures, designs, strategy papers, implementation plans, and technical documents) it has drafted.
- Any use (especially processing, realization, photocopying, distribution, open demonstrations, provisions to use) of the documents or parts thereof is only allowed with the express permission of the contractor. Consequentlythe documents may only be used by the client for commissioning the service or for set purposes as laid down in a subsequent agreement.
- The contractor is entitled, and the client obliged, to state the name of the contractor (company, trading name) on publications and publicity relating to the project.
- In the case of infringement of these provisions for the protection of the documents the contractor is entitled to exact a penalty double the amount of the appropriate remuneration for unauthorized use, whereas the right to exercise a claim for damages over and beyond this amount is reserved. This contractual penalty is not subject to judicial mitigation. The burden of proof that the client has not used documents belonging to the contractor lies with the client.
10. Applicable law, jurisdiction
- Austrian law shall exclusively apply to all contracts between client and contractor.
- The commercial court of Vienna has exclusive jurisdiction for all disputes arising out of this contract.
11. Severability clause
- Where individual provisions in the contract are, or become, invalid, then this does not affect the validity of the remaining provisions in the contract. In this case a provision closest to the invalid one with regards to commercial content is regarded as having been agreed.
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