Terms and conditions
-
General terms and conditions
1. Validity of the general terms and conditions and deviations
- The NETZER GROUP operates as an engineering office and/or general contractor. The following conditions apply exclusively to his client.
- The following general terms and conditions apply to all current and future contracts between the client in his capacity as an entrepreneur and the engineering office.
- Deviations from these conditions and in particular the conditions of the client only apply if they are expressly recognized and confirmed in writing by the engineering office.
2. Offers, ancillary agreements
- Unless otherwise stated, the offers of the engineering office are non-binding with regard to all specified data, including the fee.
- If an order confirmation from the engineering office contains changes compared to the order, these are deemed to have been approved by the client unless the client objects immediately in writing.
- Agreements must always be in writing.
3. Placing an order
- The type and scope of the agreed service result from the contract, power of attorney and these General Terms and Conditions.
- Changes and additions to the order require written confirmation by the engineering office in order to become the subject of the present contractual relationship.
- The engineering office undertakes to properly carry out the order placed in accordance with the generally accepted rules of technology and the principles of economic efficiency.
- The engineering office can use other authorized persons (subcontractors) to fulfill the contract and issue orders to them in the name and for the account of the client.
4. Warranty and Compensation
- The obligation to warn (in particular within the meaning of 1168a ABGB) of the engineering office is excluded.
- Warranty claims can only be raised after substantiated defects, which must be made by registered letter within 14 days of delivery of the service or partial service.
- Claims for rescission and price reduction are excluded. Claims for improvement or addition of what is missing are to be fulfilled by the engineering office within a reasonable period of time, which corresponds to the period agreed for the implementation of the original service. A claim for damage caused by delay cannot be asserted within this period.
- The engineering office must provide its services with the care expected of it as a specialist (1299 ABGB).
- If the engineering office has culpably caused damage to the client in violation of its contractual obligations, the client's liability for compensation for the damage caused thereby, unless otherwise agreed in individual cases, is limited in the case of slight negligence as follows:
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 EUR 250.000,00: a maximum of EUR 12.500,00;
-
- for an order value of more than EUR 250.000,00: 5% of the order value, but no more than EUR 750.000,00. Liability for consequential damage 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 permitted for important reasons.
- If the engineering office is in default with a service, the client can only withdraw after setting a reasonable grace period; the grace period is to be set by registered letter. The appropriate period of grace is at least four weeks.
- If the customer defaults on a partial service or an agreed cooperation activity, which makes it impossible or significantly impedes the execution of the order by the engineering office, the engineering office is entitled to withdraw from the contract.
- If the engineering office is entitled to withdraw from the contract, it retains the right to the entire agreed fee, also in the case of unjustified withdrawal by the client. Furthermore, 1168 ABGB applies; if the client withdraws with justification, the services rendered by the engineering office are to be paid for by the client.
6. Fee, scope of services
- Unless otherwise stated, all fees are in EURO.
- Sales tax (value added tax) is not included in the stated fee amounts, 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 Association for Engineering Offices are part of the contract.
- Unless expressly agreed otherwise, payment must be made without deductions within 30 days of invoicing to the account specified by the engineering office at a bank with a domestic branch. In the event of late payment, interest of 9,2% per annum above the base rate of the ECB plus reminder fees must be paid.
7. Place of fulfillment
- The place of performance for all office services is the registered office of the engineering office.
8. Confidentiality
- The engineering office is obliged to keep all information provided by the client confidential.
- The engineering office is also obliged to keep its planning activities secret if and for as long as the client has a legitimate interest in this secrecy. After completing the order, the engineering office is entitled to publish the contractual work in whole or in part for advertising purposes, unless otherwise contractually agreed.
9. Protection of Plans
- The engineering office reserves all rights and uses of the documents it has created (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 engineering office. All documents may therefore only be used for the purposes expressly specified when the order was placed or by a subsequent agreement.
- The engineering office is entitled, the customer is obliged, to state the name (company, business name) of the engineering office in publications and announcements about the project.
- In the event of violation of these provisions for the protection of the documents, the engineering office is entitled to a penalty in the amount of twice the appropriate fee for the unauthorized use, whereby the assertion of a claim for damages that goes beyond this remains reserved. This penalty is not subject to judicial mitigation. The burden of proof that the client has not used the documents of the engineering office lies with the client.
10. Choice of Law, Place of Jurisdiction
- Austrian law applies exclusively to contracts between the client and the engineering office.
- For all disputes arising from this contract, the exclusive jurisdiction of the factually competent court at the registered office of the engineering office is agreed.
Updated 1.1.2017
-
AGBs Subcontractor Netzer RRT
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 his capacity as an entrepreneur and Netzer RRT.
- Deviations from these conditions and in particular the conditions of the client only apply if they are expressly recognized and confirmed in writing by the engineering office.
- Insofar as these GTC do not contain any regulations, the provisions of the ABGB and the UGB apply exclusively. In any case, legal Austrian standards or the contractor's own general terms and conditions are not 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 basis of the contract is also the general contractor contract concluded between Netzer RRT and the client. The contractor is obliged to do everything possible to ensure that Netzer RRT can comply with this general contractor agreement. Unless otherwise expressly agreed in the contract between Netzer RRT and the contractor, including these GTC, the general contractor contract concluded between Netzer RRT and the client shall also apply in relation to the contractor. In addition, the contractual conditions according to these General Terms and Conditions apply.
3. Scope of services
- The contractor undertakes to complete the contractual work by the agreed completion date, scturnkey and functional and fully assembled/ready to create.
- The service description must be complied with, but does not represent an exhaustive list of the scope of services to be produced. Rather, the contractor is obliged to ensure that the entire work is fully functional, free of defects and in accordance with all official regulations and requirements to be observed, even where the service description may be incomplete to produce permittable. The contractor cannot refer to the fact that individual services or partial services that are required for this are not expressly mentioned in the service description or in other parts of the contract. The contract therefore includes all deliveries and services that are necessary to achieve the aforementioned success. In this respect, the contractor assumes a completeness guarantee to erect the work completely at the agreed price (point 5 below).
- The contractor declares that he has carefully read and checked all parts of the contract and fully agrees with the provisions contained therein. He also 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 systems, especially insofar as they are relevant for the connection and energy supply of the new (construction) works, the current condition of the the buildings located on the contractual area and the subsoil, the soil conditions and the transport connections of the building site are known.
- In any case, the connection of the plant to the existing buildings and facilities must be carried out in such a way that the current function of the existing building is not impaired, insofar as this remains the case on the basis of the present contract. The contractor further declares that he is able and entitled to fulfill the contractually agreed services on the basis of the existing contract components (especially the plans and permits).
- In any case, the contractual service includes all costs, fees and charges associated with the project, also insofar as the use of third-party areas and devices is necessary and fees are to be paid for this.
- The contractor's scope of services also includes the construction site equipment including the necessary permits, construction surveillance and construction site security.
- The client formally submits the (fully documented) completion notice for the operating facility and usage permit, but the contractor must provide all the preparatory work and preliminary services for this and also take part in the usage permit and operating facility approval process.
4. Overriding Obligation
- The contractor has the overriding contractual obligation to provide his service in accordance with the contract in such a way that the functionality, completion and construction of the project in accordance with the permit is absolutely guaranteed at the flat-rate fixed price agreed in point 5 and on the agreed dates.
- A (even partial) waiver of this overriding obligation of the contractor is only permitted if a written agreement is reached between the customer 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 any or no timely written response from the Client to an inquiry, a proposal for additions or changes or any other communication, he is nevertheless obliged to construct the work in accordance with the provisions of the contract in accordance with this overriding obligation. In particular, he cannot refer to the fact that he has not received any response from the client or has not received it in a timely manner. If this is the case, the contractor must, with the care of a prudent entrepreneur, carry out the execution in accordance with the existing contract components while complying with his overriding obligation and he must immediately inform the client in writing of all measures he has initiated.
- In no event may any right or obligation that the Contractor has under this Agreement be used by him to waive his overriding obligation.
- It is also expressly stated that a missing or late 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. Fee
- The agreed price applies to all contractual services as a fixed price.
- This flat-rate fixed price covers all services to be provided by the contractor under the contract.
- The contractor is not entitled to demand a price adjustment if the basis of his calculations change - for whatever reason - if prices develop differently than he had assumed or if the assumptions he made otherwise prove to be inaccurate.
- In any case, the aforementioned fixed price also applies to additional expenses as a result of changes in 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. Appointments
- The construction work is to begin on the agreed date. If a building permit has not yet been issued at this point in time, construction work must begin on the first working day of the calendar week following the issuance of the building permit.
- The contractor thus acknowledges that the construction schedule handed over must be adhered to with regard to each individual date; it is also the basis for the other professionals. In particular, the contractor may not delay the interim dates contained therein even if he can rely on being able to meet the overall completion date. In order to meet these deadlines in any case, the Contractor may also be obliged to take enforcement measures, and the Contractor is also entitled to order such enforcement measures in the event of an impending delay. There are no additional costs for such enforcement measures.
7. Billing and Maturity
- Invoices are to be submitted in triplicate, in an easily verifiable form, and are to be transferred to the domestic account specified by the contractor as agreed. The discount period runs from the date of receipt by the customer, but the earliest the discount period begins with acceptance free of defects.
- The final invoice is due for payment within 90 days after invoicing less the retention fee of at least 5% (point 8 below).
- All payments requested by the contractor must be finally included in the final invoice. In any case, the final accounting excludes the assertion of subsequent claims. A proviso of subsequent billing for further services in the final invoice is not permitted and is deemed not to have been set.
- The client has the right to pay the sales tax by means of a counter-invoice in accordance with the BAO, provided that the tax authorities do not raise any objections in this regard. If this transfer is not possible or is not carried out, the sales tax is due at the end of the month following the issuance of the final invoice.
8. Escrow, Detention and Denial of Performance
- At least a 10% liability deposit will be retained from the final invoice, which can be redeemed with an abstract bank guarantee. If the retention fee in the (general contractor) contract between Netzer RRT and the client is higher, a retention fee of at least this amount is deemed to have been agreed.
- The waiver serves to cover all of the contractor's obligations arising from non-performance, poor performance and compensation. However, in the event of defects or damage, the retention is not limited to the retention of liability. Any bank guarantee given to replace the lien must have a term of at least three years from formal acceptance (point 16 below).
- In the event of disputes, the contractor is not entitled to discontinue its services.
9. Penalty
- The contractor undertakes to pay a no-fault contractual penalty in the same amount as Netzer RRT is obligated to pay a contractual penalty to the client (in particular the general contractor contract), but at least 1% of the flat-rate fixed price (point 5 above) for each calendar week by which one of the individual dates mentioned in this contract text is exceeded (cap with 50% of the order value).
- The contractual penalty does not need to be reserved in the case of partial payment or acceptance; it is sufficient if it is asserted in the final payment.
- The right to a contractual penalty is independent of whether the client has suffered damage as a result of the late completion.
- Further claims of the customer against the contractor for compensation for the actual damage caused by the late completion, non-performance or poor performance remain valid, but the contractual penalty is offset against the total compensation.
10. Collateral
- Within two weeks of the conclusion of this contract, the contractor shall provide the client with an abstract contract performance guarantee from a first-class Austrian bank. The client is entitled to redeem this bank guarantee for all claims arising from this contract, i.e. for non-performance, poor performance and claims for damages and all other claims.
11. Changes in service and additional orders
- The customer is entitled to cancel parts of the agreed scope of services even after the conclusion of the contract by means of a unilateral declaration, whereupon the agreed fixed price is reduced by the amounts charged for the parts of the order that are no longer applicable. The same applies 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 must be reduced proportionately and a new partial flat-rate fixed price must then be formed.
- These principles are also to be applied accordingly if items are omitted for which no explicit fixed fixed prices are listed.
- The client is also entitled to change the contractually fixed scope of services by exchanging individual services or to demand additional services, without further claims for payment for the contractor, provided that the change does not burden him more than the original agreement. In the case of changes that burden the contractor more than the original agreement, a written agreement must be reached between the customer and the contractor on any additional individual flat-rate fixed prices before the work is carried out.
- If the contractor carries out changes or additional services without a separate written fee agreement having been made with the client for this purpose, he irrevocably declares his consent to carry out the change while retaining the previously agreed fixed price. There is then no entitlement to further remuneration for this. This only does 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 flat rate even if they are not listed separately in this contract. There is no further claim for payment than that agreed in point 6.
12. Local building supervision, cooperation of several
- The contractor acknowledges that the client is entitled, but not obliged, to have the construction work monitored at all times. However, the scope of performance and liability of the contractor are in no way restricted by the existence of the local building inspection.
- The instructions of the local building supervision are to be followed as far as they specify the scope of services of the present contract. The local building supervision is under no circumstances entitled to order changes to the service or to issue other instructions which may affect the scope of the service, the overriding obligation or the agreed fixed price. If the contractor receives such instructions, he must immediately forward them to the client for information and wait for a written statement from the latter.
- The overriding obligation of the contractor in the sense of point 4 of this contract remains unaffected.
- As far as possible, the contractor must seek 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.
- For the execution of all services, only plans, planning and execution documents as well as samples that have been approved by the customer or the local building supervision may be used without exception (approval note). However, the release of plans, planning and execution documents and samples by the client does not mean that the contractor is exempt from liability or limit its liability.
13. Cooperation of the customer
- During the execution of the construction as well as in the course of the execution of any warranty work by the contractor, the client has a right of participation in terms of the specification of the contractual scope of services. Furthermore, according to point 11, he has the right to order changes to the service and to issue additional orders.
- If the client does not give instructions, specifications, answers and the like in good time, the overriding obligation under point 5 applies.
- The client is obliged to set up connection points for high-voltage current, water and gas. The contractor is responsible for bringing 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 is also responsible for setting up various meters and paying any fees or rents for them. Finally, the contractor has to bear the costs of water, electricity and gas consumption for the provision of his service.
14. Subcontractors
- The contractor is not entitled to use subcontractors for the work that is the subject of the contract without the consent of the customer.
15. Duty to Warn
- The contractor is obliged to examine all parts of the contract and other available documents, the building site and all preliminary work by other professionals to ensure that they are suitable for achieving the success he owes. A fee for this test is included in the agreed fixed price. The contractor cannot claim that any defects inherent in the work are due to inaccuracies or incompleteness in the plans or inadequate preliminary work by other professionals, to the building site or instructions from the client or the local building supervision. Likewise, he cannot raise any objections of sole or contributory negligence to the client or his assistants (including the local construction supervision).
- Even the soil report that may be given to the contractor does not release him from his own full inspection and warning obligation under this contract.
- Any warnings must be given to the client in writing, with a description of the risk that may arise and with simultaneous proposals for preventing this risk, and a copy of this must be sent to the local building inspectorate.
16. Acceptance
- A formal final acceptance of the entire work in accordance with the general contractor contract is agreed between Netzer RRT and the client, which takes place after the client is ready for occupancy and turnkey/ready for operation. A record to be signed by the contracting parties will be drawn up for this final acceptance, in which any complaints and defects are to be recorded. However, this record does not have any exclusionary effect in the sense that the client loses claims for any defects not listed in the record. In particular, the contractor must remedy all defects and meet any additional requirements of the building authority even if there is no corresponding note in the minutes. This applies regardless of whether the defect is obvious or hidden. The submission of the notice of completion is by no means to be regarded as a final acceptance within the meaning of this provision.
- If the partial acceptance of individual construction phases or components takes place, or if parts or the entire work to be built on the basis of this contract is actually put into operation, this does not mean a final acceptance in the above sense. Even a start of normal operation in parts or in the entirety of the work is not to be regarded as final acceptance.
- The final acceptance is decisive for the beginning of the liability of the contractor from warranty and for the transfer of risk to the customer.
- In any case, the full warranty period is available to the customer from the time of final acceptance; however, he is also entitled to refuse acceptance of the work because it turns out that partial services that have already been accepted or put into operation impair the functionality or freedom from defects of the work.
- If the customer refuses acceptance due to the existence of defects in the final acceptance, the contractor is obliged, after the defects have been rectified, to invite the customer again for acceptance within a period of at least eight days, provided that in his opinion the acceptance readiness has now been reached.
17. Warranty and liability
- The contractor is responsible for the complete freedom from defects and functionality as well as the approvability of the work he has built, i.e. for the complete contractual conformity of the service provided. He is liable for the titles of damages and warranty according to the legal provisions of the ABGB and UGB, insofar as this contract does not provide for any changes.
- The client is not obliged to report defects.
- Full reversal of the burden of proof applies. In particular, the contractor must prove that his work is free of defects and/or that he is not responsible for any illegal activity or fault.
- Going beyond the provisions of the ABGB, the customer is also entitled, in the event of significant defects that prevent the proper use of at least parts of the work, to immediately commission the replacement work by third parties without having to ask the contractor to improve the work himself.
- The submission of certificates regarding the suitability of certain materials or building materials or the specification of materials by the customer does not release the contractor from his full liability for their suitability.
- In addition to liability for the work itself being free of defects, all actions and omissions taken or necessary in the execution of the contract are also within the contractor's area of liability. The contractor is liable to the client for all damage caused by the actions and omissions of his assistants or people commissioned or employed by him or by people who are in the construction site area with his approval or who are there without his approval as a result of his organizational fault. develop. In any case, all services must be carried out 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 also do not suffer any other financial losses.
- The contractor shall indemnify and hold the client harmless from all damages asserted by third parties against the client due to a circumstance within the contractor's area of liability.
- The contractor warrants to the customer that the roof, including the roof seal, is free from defects for ten years, should such a seal need to be installed, and for the remaining parts of the work for three years.
- The deadlines mentioned begin with the final acceptance.
- If the customer complains about a defect out of court, the deadline for the judicial assertion of all claims related to the defect complained of is extended by one year.
- Claims of the customer that go beyond the aforementioned and exist on the basis of the law remain unaffected.
18. Withdrawal for Default
- Without prejudice to his claim for a penalty, which remains unaffected by this, the client is entitled to withdraw from this contract if the contractor is more than two weeks behind schedule 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 is obliged to set the contractor a grace period of at least two weeks with a declaration of withdrawal. The resignation has to be written.
- In the event of withdrawal, the payments on account that have already become due apply as the total remuneration for the services provided by the contractor.
- Furthermore, the contractor must reimburse the customer for all additional expenses for the completion of the work by other companies (substitute performance), without being able to raise any objections to the amount of these additional costs.
19. Insurance
- Before the start of construction, the contractor must provide proof of valid business liability insurance with coverage of € 5 (five) million per claim for property damage and personal injury. Business liability insurance must be in place for the duration of the construction period.
- All insurance premiums are included in the fixed price according to point 5. If the contractor fails to take out such insurance, the client is entitled to take out this insurance for the contractor at the contractor's expense and to deduct it from the fixed price agreed in point 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 must be numbered consecutively and submitted to the client weekly for signature.
- The signature by the client does not release the contractor from the overriding obligation, a change in the scope of services, the subject matter of the contract or the agreed fee, nor does the contractor release himself from liability. The documentation serves purely to record the actual construction process, without declarations of intent by the contractual partners being able to be derived from it.
21. Final Provisions
- Should a provision of this contract be or become legally ineffective, the validity of the remaining contractual provisions and the contract as a whole shall remain unaffected. In this case, the ineffective provision shall be deemed to be replaced by the effective provision that corresponds to it as economically as possible. The same applies to gaps in the contract and to contractual regulations that are not sufficiently specific.
- All appendices of the contract form its integral parts.
- The present contract, together with the contractual components mentioned therein, finally reflects the agreement made, verbal side agreements do not exist.
- Changes or additions to this contract must be made in writing to be effective. This also applies to a waiver of the written form requirement. E-mail is also considered to be in writing.
- The assignment of claims from this contract requires the written consent of the client. The contractor is not entitled to set off claims against the client, unless the claims are recognized in writing or legally enforceable.
- The court responsible for 6800 Feldkirch/Austria is agreed as the exclusive place of jurisdiction for all claims arising from the contract between the customer and the contractor. This also applies to disputes about the validity, violation, termination or nullity of this contract.
- Austrian law applies.
Updated 1.1.2019