GTC

1 Validity of the General Terms and Conditions and deviations

• The NETZER GROUP acts as an engineering office and/or general contractor. The following terms and conditions apply exclusively to its customers.

• The following General Terms and Conditions shall apply to all present and future contracts between the Client in its capacity as an entrepreneur and the Consulting Engineer/Firm.

• Deviations from these terms and conditions and in particular the client's terms and conditions shall only apply if they are expressly recognized and confirmed in writing by the engineering company.

2. offers, collateral agreements

• Unless otherwise stated, the engineering firm's offers are non-binding with regard to all data provided, including the fee.

• If an order confirmation from the engineering firm contains changes to the order, these shall be deemed to have been approved by the client unless the client immediately objects in writing.

• Agreements must always be made in writing.

3. placing of order

• The nature and scope of the agreed service are set out in the contract, the power of attorney and these General Terms and Conditions.

• Amendments and additions to the order must be confirmed in writing by the engineering company in order to become the subject of this contractual relationship.

• The engineering company undertakes to carry out the contract awarded to it in accordance with the generally recognized rules of technology and the principles of economic efficiency.

• The Consulting Engineer/Firm may engage other authorized parties (subcontractors) to fulfill the contract and place orders with them in the name and for the account of the Client.

4 Warranty and compensation

• The engineering firm's duty to warn (in particular within the meaning of Section 1168a ABGB) is excluded.

• Warranty claims can only be made after substantiated defects, which must be made exclusively by registered letter within 14 days of delivery of the service or partial service.

• Claims for rescission and price reduction shall be excluded. Claims for improvement or supplementation of the missing items shall be fulfilled by the Consulting Engineer/Firm within a reasonable period corresponding to the period agreed for the performance of the original service. A claim for damages caused by delay cannot be asserted within this period.

• The engineering firm must provide its services with the care expected of it as a specialist (1299 ABGB).

• If the Consulting Engineer/Firm has culpably caused damage to the Client in breach of its contractual obligations, its liability for compensation for the damage caused thereby shall be limited as follows in the event of slight negligence, unless otherwise agreed in the individual case:
  1. in the case of personal injury without limitation,
  2. in all other cases with the following limitations:

• • for an order amount of up to 250,000.00 euros: maximum 12,500.00 euros;

• • for an order amount of more than 250,000.00 euros: 5 % of the order amount, but no more than 750,000.00 euros.3 Liability for consequential damages and loss of profit is also excluded in the event of gross negligence, unless otherwise agreed in individual cases.

5. withdrawal from the contract

• Withdrawal from the contract is only permissible for good cause.

• If the engineering firm is in default with a service, the client may only withdraw from the contract after setting a reasonable grace period; the grace period must be set by registered letter. The reasonable grace period shall be at least four weeks.

• In the event of a delay on the part of the client with regard to a partial service or an agreed cooperation activity, which makes it impossible or significantly hinders the execution of the order by the engineering company, the engineering company shall be entitled to withdraw from the contract.

• If the Consulting Engineer/Firm is entitled to withdraw from the contract, it shall retain the claim to the entire agreed fee, likewise in the event of unjustified withdrawal by the Client. Furthermore, Section 1168 of the Austrian Civil Code (ABGB) shall apply; in the event of justified withdrawal by the client, the services provided by the engineering firm shall be remunerated by the client.

6 Fee, scope of services

• Unless otherwise stated, all fees are in EURO.

• The fees quoted do not include value added tax (VAT), which must be paid separately by the client.

• Compensation with any counterclaims, for whatever reason, is not permitted.

• Unless otherwise agreed, the non-binding calculation recommendations issued by the professional association for engineering firms shall form part of the contract.

• Unless expressly agreed otherwise, payment shall be made without deductions within 30 days of invoicing to the account of a bank with a domestic branch specified by the Consulting Engineer/Firm. In the event of late payment, interest shall be payable at a rate of 9.2% per annum above the ECB prime rate plus reminder fees.

7. place of fulfillment

• The place of performance for all office services shall be the registered office of the engineering firm.

8. secrecy

• The Consulting Engineer/Firm shall be obliged to treat all information provided by the Client as confidential.

• The Consulting Engineer/Firm shall also be obliged to maintain the confidentiality of its planning activities if and for as long as the Client has a legitimate interest in this confidentiality. After completion of the order, the Consulting Engineer/Firm shall be entitled to publish the contractual work in whole or in part for advertising purposes, unless otherwise contractually agreed.

9. protection of the plans

• The engineering company reserves all rights and uses to the documents it has produced (in particular plans, brochures, technical documents) and other works.

• Any use (in particular processing, execution, duplication, distribution, public presentation, making available) of the documents or parts thereof is only permitted with the express consent of the Consulting Engineer/Firm. All documents may therefore only be used for the purposes expressly specified when the order is placed or by a subsequent agreement.

• The engineering company is entitled, and the client is obliged, to state the name (company, business name) of the engineering company in publications and announcements about the project.

• In the event of infringement of these provisions for the protection of documents, the engineering company shall be entitled to a penalty amounting to twice the reasonable fee for unauthorized use, whereby the right to assert a claim for damages in excess thereof shall remain reserved. This penalty is not subject to the judicial right of moderation. The burden of proof that the client has not used the engineering firm's documents shall lie with the client.

10 Choice of law, place of jurisdiction

• Austrian law shall apply exclusively to contracts between the Client and the Consulting Engineer/Firm.

• All disputes arising from this contract shall be subject to the exclusive jurisdiction of the competent court at the registered office of the Consulting Engineer/Firm.

 

Status 1.1.2017

1 Validity of the General Terms and Conditions and deviations

• The following General Terms and Conditions apply to all current and future contracts between the contractor in its capacity as a business and Netzer RRT.

• Deviations from these terms and conditions and in particular the client's terms and conditions shall only apply if they are expressly recognized and confirmed in writing by the engineering company.

• Unless these GTC contain provisions to the contrary, the provisions of the Austrian Civil Code (ABGB) and the Austrian Commercial Code (UGB) shall apply exclusively. Legal ÖNORMEN or the Contractor's own general terms and conditions shall not form part of the contract.

2. subject matter of the contract

• Netzer RRT is the general contractor and commissions the contractor as a subcontractor in accordance with the agreements made, in particular in the order form. The contractual basis is also the general contractor agreement concluded by Netzer RRT with the client. The contractor is obliged to make every effort to ensure that this general contractor agreement can be complied with by Netzer RRT. Unless expressly agreed otherwise in the contract between Netzer RRT and the contractor, including these GTC, the general contractor agreement concluded by Netzer RRT with the client shall also apply in relation to the contractor. In addition, the contractual conditions in accordance with these GTC shall apply.

3. scope of services

• The Contractor undertakes to complete the work covered by the contract by the agreed completion date in a complete,turnkey and functional and fully assembled/ready for operation condition.

• The service description must be complied with, but does not represent an exhaustive list of the scope of services to be provided. Rather, the Contractor is obliged to produce the entire work in a fully functional, defect-free and fully approvable manner in accordance with all official regulations and requirements to be complied with, even where the service description may be incomplete. The Contractor may not rely on the fact that individual services or partial services required for this purpose are not expressly mentioned in the service description or in other parts of the contract. The contract therefore includes all deliveries and services required to achieve the aforementioned success. In this respect, the Contractor assumes a guarantee of completeness to construct the work in full at the agreed price (point 5 below).

• The contractor declares that he has carefully read and checked all parts of the contract and that he fully agrees with the provisions contained therein. He further expressly confirms that he is aware of the scope of the agreed services, the location of the construction site, the existing buildings and the currently existing technical installations, in particular insofar as they are relevant for the connection and energy supply of the new (construction) plant, the current condition of the buildings on the area covered by the contract and the subsoil, the soil conditions and the traffic connections to the construction site.

• The connection of the work to the existing buildings and facilities must in any case be carried out in such a way that the current function of the existing building, insofar as it remains in place on the basis of this contract, is not impaired. The Contractor further declares that it is able and authorized to perform the contractually agreed services on the basis of the present contract components (in particular also the plans and approvals).

• The contractual service shall in any case include all costs, fees and charges in connection with the project, even if the use of third-party land and facilities is necessary and fees have to be paid for this.

• The Contractor's scope of services shall also include construction site equipment, including the necessary permits, construction supervision and construction site security.

• Although the formal submission of the (fully documented) notice of completion for the operating facility and use permit is carried out by the client, the contractor must carry out all preparatory work and preliminary work for this and also participate in the use permit and operating facility approval procedure.

4. overriding obligation

• The Contractor has the overriding contractual obligation to provide its services in accordance with the contract in such a way that the functionality, completion and approval-compliant construction of the project is absolutely guaranteed at the fixed lump-sum price agreed in point 5 and on the agreed dates.

• A deviation (even partial) from this overriding obligation of the Contractor is only permissible if a written agreement is reached between the Client and the Contractor and it is expressly stated in the text that the overriding obligation of the Contractor is hereby modified.

• Otherwise, for example, if the Contractor does not receive a written response or does not receive a timely written response from the Client to a request, a proposal for additions or amendments or any other notification, the Contractor shall nevertheless be obliged to perform the work in accordance with the provisions of the contract in compliance with this overriding obligation. In particular, the Contractor may not rely on the fact that it has not received a response from the Client or has not received a response in good time. If this is the case, the Contractor must carry out the work in accordance with the existing parts of the contract with the diligence of a prudent contractor and in compliance with its overriding obligation and must inform the Client immediately in writing of all measures it has initiated.

• Under no circumstances may a right or obligation that the Contractor has under this contract be used by it to deviate from its overriding obligation.

• It is also expressly stated that a missing or delayed response or any breach of cooperation obligations by the client does not entitle the contractor to raise an objection of sole or contributory negligence.

5. remuneration

• The agreed price shall apply as a fixed all-inclusive price for all contractual services.

• This fixed all-inclusive price covers all services to be provided by the contractor under the contract.

• The Contractor shall not be entitled to demand a price adjustment if its calculation bases change - for whatever reason - if prices develop differently than assumed by it or if the assumptions made by it otherwise prove to be incorrect.

• The aforementioned fixed lump-sum price shall in any case also apply in the event of additional expenses as a result of changes to the scope of services within the meaning of point 11, unless an express written agreement has been made in advance between the client and the contractor.

6. dates

• Construction work must begin on the agreed date. If a building permit has not yet been issued at this time, construction work must begin on the first working day of the calendar week following the issue of the building permit.

• The Contractor therefore acknowledges that the construction schedule provided must be adhered to with regard to each individual deadline; it also forms the basis for the other professionals. In particular, the Contractor may not delay interim deadlines contained therein even if it may rely on meeting the overall completion date. In order to meet these deadlines in any case, the Contractor shall also be obliged to take forcing measures if necessary, and the Contractor shall also be entitled to order such forcing measures in the event of an impending delay. Additional costs for such acceleration measures are not due.

7. invoicing and due date

• Invoices shall be submitted in triplicate, in an easily verifiable form and shall be transferred to the domestic account to be specified by the Contractor in accordance with the agreement. The discount period shall run from the date of receipt by the Client; however, the discount period shall commence at the earliest upon defect-free acceptance.

• The final invoice shall be due for payment within 90 days of invoicing, less the liability discount of at least 5% (item 8 below).

• All payments requested by the Contractor shall be included in the final invoice. The final invoice shall in any case exclude the assertion of subsequent claims. A reservation of subsequent billing for further services in the final invoice is not permitted and shall be deemed not to have been made.

• The client has the right to pay the VAT by way of counter-invoicing in accordance with BAO, provided that no objections are raised by the tax authorities in this regard. If this offsetting is not possible or is not carried out, the VAT is due at the end of the month following the month in which the final invoice is issued.

8. retention, withholding and refusal of performance

• At least a 10% liability reserve is retained from the final invoice, which can be redeemed by means of an abstract bank guarantee. If the liability retention in the (general contractor) contract between Netzer RRT and the client is higher, a liability retention of at least this amount is deemed to have been agreed.

• The retention shall serve to cover all obligations of the Contractor arising from non-performance, defective performance and damages. However, in the event of defects or damage, the retention is not limited to the retention fee. Any bank guarantee given to replace the retention of liability must have a term of at least three years from formal acceptance (point 16 below).

• In the event of disputes, the Contractor shall not be entitled to suspend its services.

9. penalty

• The contractor undertakes to pay a no-fault contractual penalty in the amount by which Netzer RRT is obliged to pay a contractual penalty to the client (in particular the general contractor agreement), but at least 1% of the fixed lump sum price (point 5 above) for each calendar week by which one of the individual deadlines specified in this contract text is exceeded (capped at 50% of the contract sum).

• The contractual penalty does not need to be reserved at the time of partial payment or acceptance; rather, it is sufficient if it is asserted at the time of final payment.

• The claim to a contractual penalty is independent of whether the client has suffered any damage as a result of the delayed completion.

• Further claims of the Client against the Contractor for compensation for the actual damage caused by the delayed completion, non-performance or defective performance shall remain unaffected, but the contractual penalty shall be offset against the total compensation for damages.

10. collaterals

• Within two weeks of the conclusion of this contract, the Contractor shall provide the Client with an abstract performance bond issued by a first-class Austrian bank. The Client shall be entitled to redeem this bank guarantee for all claims arising from this contract, i.e. for non-performance, defective performance, claims for damages and all other claims.

11. service changes and additional orders

• The client is entitled to cancel parts of the agreed scope of services by unilateral declaration even after conclusion of the contract, whereupon the agreed flat-rate fixed price shall be reduced by the amounts priced for the omitted parts of the order. The same shall apply if parts of the order are canceled in this way; in this case, the individual flat-rate fixed price for the corresponding part of the order shall be reduced proportionately and a new partial flat-rate fixed price shall then be formed.

• These principles must also be applied accordingly if items are omitted for which no explicit fixed all-inclusive prices are listed.

• The client is also entitled to change the contractually agreed scope of services by replacing individual services or to demand additional services, without any further claims for remuneration for the contractor, provided that the change does not burden him more than the original agreement. The Client and the Contractor must reach a written agreement on any additional individual fixed flat-rate prices for changes that burden the Contractor more than the original agreement before the work is carried out.

• If the Contractor carries out changes or additional services without a separate written remuneration agreement having been concluded with the Client, the Contractor hereby irrevocably declares its agreement to carry out the change while retaining the previously agreed fixed lump-sum price. In this case, there is no entitlement to further remuneration. This shall only not apply if a corresponding agreement on additional cost claims has been mutually reserved in writing for a later agreement.

• As already mentioned in point 5 above, all services that are the subject of the contract are included in the scope of services covered by the fixed all-inclusive price, even if they are not listed separately in this contract. There is no entitlement to remuneration beyond that agreed in point 6.

12. local building supervision, cooperation of several parties

• The Contractor acknowledges that the Client is entitled, but not obliged, to have the construction work supervised at all times. However, the Contractor's scope of performance and liability shall not be limited in any way by the existence of local construction supervision.

• The instructions of the local construction supervisor must be followed to the extent that they specify the scope of performance of this contract. Under no circumstances shall the local construction supervisor be authorized to order changes to services or to issue other instructions that may affect the scope of services, the overriding obligation or the agreed fixed lump-sum price. If the Contractor receives such instructions, it must forward them immediately to the Client for information and await a written statement from the Client.

• The overriding obligation of the Contractor within the meaning of point 4 of this contract shall remain unaffected by this.

• The Contractor shall seek the greatest possible technical and temporal cooperation with all other professionals involved in the work in question in order to ensure that the project runs smoothly and without defects.

• Without exception, only plans, planning and execution documents and samples that have been approved by the client or the local construction supervisor (approval note) may be used for the execution of all services. However, the approval of plans, planning and execution documents as well as samples by the client does not constitute an exemption from liability or a limitation of the contractor's liability.

13. participation of the client

• During the execution of the construction work as well as in the course of the execution of any warranty work by the Contractor, the Client shall have a right of cooperation in the sense of specifying the contractual scope of services. It also has the right, within the meaning of point 11, to order changes to the services and to place additional orders.

• If the client does not provide instructions, clarifications, answers and the like in good time, the overriding obligation under point 5 shall apply in any case.

• The client is obliged to set up connection points for heavy current, water and gas. The Contractor shall be responsible for supplying water, electricity and gas from the connection points set up by the Client to the points of use, insofar as this is necessary for the performance of the Contractor's services. The Contractor shall also be responsible for the installation of various meters and the payment of any fees or rents for these. Finally, the Contractor shall bear the costs of water, electricity and gas consumption for the provision of its services.

14. subcontractors

• The Contractor shall not be entitled to use subcontractors for the contractual work without the approval of the Client.

15. duty to warn

• The Contractor is obliged to check all contract components and other available documents, the building site and all preliminary work by other professionals for their suitability for producing the result owed by the Contractor. A fee for this inspection is included in the agreed fixed lump-sum price. The Contractor may not claim that any defects in the work are due to inaccuracies or incompleteness in the plans or inadequate preliminary work by other professionals, to the building ground or to instructions from the Client or the local building inspectorate. Likewise, he may therefore not raise any objection of sole or contributory negligence against the client or his assistants (including the local construction supervisor).

• Even the soil survey handed over to the contractor does not release him from his full obligation to inspect and warn in accordance with this contract.

• Any warnings must be made to the client in writing, outlining the resulting risk and at the same time making proposals to prevent this risk, and a copy must be sent to the local building inspectorate.

16. acceptance

• A formal final acceptance of the entire work is agreed between Netzer RRT and the client in accordance with the general contractor agreement, which takes place after completion by the client as a turnkey project ready for occupation and operation. A record of this final acceptance shall be drawn up and signed by the contracting parties, in which any complaints and defects shall be recorded. However, these minutes shall not have any exclusionary effect in the sense that the client shall lose any claims due to any defects not mentioned in the minutes. In particular, the contractor must rectify all defects even without a corresponding note in the minutes and fulfill any additional requirements of the building authority. This applies regardless of whether the defects are obvious or hidden. The submission of the notice of completion is in no way to be regarded as final acceptance within the meaning of this provision.

• Should the partial acceptance of individual construction sections or components take place, or should parts or the entire work to be constructed on the basis of this contract actually be put into operation, this shall not yet constitute final acceptance in the above sense. Even the commencement of normal operation of parts or the entirety of the work is not to be regarded as final acceptance.

• The final acceptance is decisive for the commencement of the contractor's liability under warranty and for the transfer of risk to the client.

• In any case, the client shall have the full warranty period from the time of final acceptance; however, the client shall also be entitled to refuse acceptance of the work because it becomes apparent that partial services that have already been accepted or put into operation impair the functionality or freedom from defects of the work.

• If the Client refuses acceptance due to the existence of defects at the final acceptance, the Contractor is obliged to invite the Client to accept the work again within a period of at least eight days after the defects have been rectified, provided that in the Contractor's opinion the readiness for acceptance has now been reached.

17 Warranty and liability

• The Contractor shall be responsible for the complete freedom from defects and functionality as well as approvability of the work performed by it, i.e. for the complete contractual conformity of the service provided. He shall be liable under the titles of damages and warranty in accordance with the statutory provisions of the Austrian Civil Code (ABGB) and the Austrian Commercial Code (UGB), insofar as this contract does not provide for any amendments thereto.

• The client is not obliged to give notice of defects.

• The full reversal of the burden of proof applies. In particular, the contractor must prove that its work is free of defects and/or that it is not guilty of any unlawful act or fault.

• In addition to the provisions of the ABGB, in the event of significant defects that prevent the proper use of at least parts of the work, the Client shall also be entitled to have the work replaced by a third party immediately, without having to request the Contractor itself to make improvements.

• The submission of certificates on the suitability of certain materials or building materials or the specification of materials by the client shall not release the contractor from its full liability for their suitability.

• In addition to liability for the freedom from defects of the work itself, all actions and omissions taken or required in the execution of the contract are also within the scope of liability of the contractor. The Contractor shall be liable to the Client for all damage caused by the actions and omissions of his assistants or the people commissioned or consulted by him or by persons who are present on the construction site with his approval or who may be present there without his approval as a result of his organizational fault. In any case, all services must be performed in such a way that the life, property or other legal interests of the client or third parties (including subcontractors, consultants or other professionals on the construction site) are not injured and that they do not suffer any other financial losses.

• The Contractor shall indemnify and hold the Client harmless from all damages that third parties assert against the Client due to a circumstance within the Contractor's area of liability.

• The Contractor warrants to the Client that the roof, including the roof waterproofing, shall be free of defects for ten years, and for three years with regard to the other parts of the work.

• The above-mentioned deadlines begin with the final acceptance.

• If the client gives notice of a defect out of court, the period for asserting all claims in connection with the notified defect in court shall be extended by one year in each case.

• Any claims of the client that go beyond the above and are based on the law shall remain unaffected.

18. withdrawal due to default

• The client is entitled to withdraw from this contract - without prejudice to its claim for a penalty, which remains unaffected by this - if the contractor is more than two weeks late with the start of construction or exceeds one of the dates provided for in the construction schedule by more than two weeks. In this case, he shall be obliged to set the Contractor a grace period of at least two weeks with a declaration of withdrawal. The withdrawal must be declared in writing.

• In the event of withdrawal, the advance payments that have already fallen due shall be deemed total remuneration for the services rendered by the Contractor.

• Furthermore, the Contractor shall reimburse the Client for all additional expenses for the completion of the work by other companies (substitute performance), without being able to raise objections to the amount of these additional costs.

19. insurances

• Prior to the start of construction, the Contractor must provide proof of valid public liability insurance with coverage of € 5 (five) million per claim for property damage and personal injury. The public liability insurance must be valid for the duration of the construction period.

• All insurance premiums are included in the fixed lump-sum price in accordance with point 5. If the Contractor fails to take out such insurance, the Client shall be entitled to take out such insurance for the Contractor at the Contractor's expense and deduct it from the fixed lump-sum price agreed in clause 5 of this contract.

20. documentation

• The Contractor is obliged to document all relevant incidents on the construction site in writing as part of daily construction reports. These are to be numbered consecutively and submitted to the client for signature on a weekly basis.

• Sign-off by the client does not constitute a release of the contractor from the overriding obligation, a change in the scope of services, the subject matter of the contract or the agreed remuneration, nor does it constitute a release of the contractor from liability. The documentation serves purely to record the actual construction process, without any declarations of intent on the part of the contracting parties being able to be derived from it.

21 Final provisions

• Should a provision of this contract be or become legally invalid, this shall not affect the validity of the remaining contractual provisions and the contract as a whole. In this case, the invalid provision shall be deemed to be replaced by a valid provision that corresponds to it as closely as possible in economic terms. The same applies to contractual loopholes and to contractual provisions that are not sufficiently defined.

• All annexes to the contract form an integral part thereof.

• This contract, including the contractual components mentioned therein, conclusively reflects the agreement reached; there are no verbal ancillary agreements.

• Amendments or additions to this contract must be made in writing to be effective. This also applies to any waiver of the written form requirement. E-mail shall also be deemed to be the written form.

• The assignment of claims arising from this contract requires the written consent of the Client. The Contractor shall not be entitled to offset claims against the Client unless such claims have been recognized in writing or are legally enforceable.

• The exclusive place of jurisdiction for all claims arising from the contract between the Client and the Contractor shall be the competent court for 6800 Feldkirch/Austria. This shall also apply to disputes concerning the validity, breach, termination or nullity of this contract.

• Austrian law shall apply.

 

Status 1.1.2019