1. Basics of the quotation
If not explicitly mentioned in the offer, all provided resources such as reports, plans, models, etc. up to the quotation are regarded as the basis for the calculated offer.
2. Services of the client
All functional requirements, procedures and requirements which have an influence on the object of performance, or the provision of services shall be determined by the client and made available to the contractor in good time for further processing.
Furthermore, the client shall make available in good time all existing inventory documents required for project processing. The present offer does not include a review of the inventory documents or the preparation of missing but necessary inventory documents, unless these are offered as additional services by the contractor.
The necessary cooperation of the client in the course of the service provision by the contractor as well as the necessary decisions of the client in due time are assumed.
3. Size or quantity characteristic as calculation or calculation basis for the remuneration of the engineering performance
The engineering performance is offered according to estimated expenditure. Unless otherwise stated in the offer, the remuneration for the engineering services shall be based on the actual expenditure of time.
4. Performance of services – processing of services – completion of services
4.1 Place of performance
Unless otherwise stated in the offer, the place of performance for the provision of the services shall be the contractor’s place of business.
4.2 Subcontractors of the Contractor
The contractor may use other authorized persons as subcontractors for the provision of services and place orders with them in his own name and for his own account. The contractor shall inform the client about this.
4.3 Performance dates
The services offered are carried out in consultation with the client. If no explicit dates are mentioned in the offer, the service must be completed no later than 6 months after the order has been placed.
4.4 Conclusion of services
The conclusion of the contract shall come into effect when the ordered services have been completed by the contractor and the final invoice has been issued.
5. Subsequent limitation of performance – termination of performance – revocation
If only individual service phases or service parts of the offered and calculated scope of services are commissioned, or if the commissioned scope of services is subsequently restricted, aborted or revoked by the client in the course of the provision of services, the remuneration of the restricted service shall be effected in accordance with § 1168 ABGB (Austrian Civil Code).
6. Additional services – service changes – service interruptions – extension of service
6.1 Additional services
Additional services are all those services which are not included in the scope of services offered (services of the bidder/contractor), but which are requested, desired or ordered by the client.
If, in the contractor’s opinion, a service requested by the client is not included in the scope of services offered, the contractor shall notify the client of this in writing prior to rendering the service and shall enter into an agreement with the client regarding remuneration.
6.2 Variants
If, at the request or with the consent of the client, variants of any kind are created for individual areas, regardless of whether they are based on the same, similar or different requirements, the additional expenses incurred by the contractor as a result shall be calculated on the basis of the actual time spent.
6.3 Changes
If changes (multiple processing) are carried out at the request or with the consent of the client as a result of circumstances for which the contractor is not responsible and which result in a reworking or reworking of services already provided, the resulting changes (multiple processing) shall be deemed to have been made.
Additional expenses of the contractor shall be charged according to the actual expenditure of time.
6.4 Completion of documents provided
If services are unavoidable for the necessary completion of documents provided by the client or third parties, the additional expenses incurred by the contractor as a result shall be charged according to the actual time spent.
6.5 Interruption of services
If the performance of services is temporarily interrupted or delayed due to circumstances for which the contractor is not responsible and if this interruption or delay lasts longer than 3 months, the additional expenses incurred by the contractor as a result of the interruption or delay shall be charged for the new start of services on the basis of the actual expenditure of time.
6.6 Extension of service provision
If the performance period agreed for the services is significantly extended due to circumstances for which the contractor is not responsible, the additional expenses incurred by the contractor as a result shall be calculated based on the actual expenditure of time.
7. Performance remuneration
The services provided by the contractor shall be remunerated by the client irrespective of the utilization or realization of the service.
The performance remuneration offered (engineering services, ancillary costs, external services, miscellaneous) refers to a one-off and continuous processing of the scope of services offered.
The remuneration of any additional expenses, additional services in the event of interruptions, etc. shall be invoiced according to the actual time spent.
The performance remuneration offered, in the case of fixed rates, shall be understood as a fixed price for the first 12 months from the date of the offer, provided that the scope, performance and other conditions of the offer do not change. After this date, the performance fee shall be adjusted based on a price index to be agreed.
Unless otherwise stated, the remuneration for engineering services will be quoted based on the actual expenditure of time.
8. Hourly rates for services according to time expenditure
The following hourly rates shall be charged for additionally commissioned engineering services which go beyond the scope of services described and for any additional expenses or services for which the contractor is not responsible.
The rendering of services on Sundays and public holidays shall be remunerated with a surcharge of 100% if this is necessary and the client has been informed about this or ordered to do so.
Hourly rate for services according to expenditure of time – without VAT: € 140, –
9. Invoicing – terms of payment – payment plan
The contractor’s final invoice shall be issued after completion of the service. The contractor reserves the right to invoice individual service packages which exceed an amount of EUR 10,000 after completion of the service packages. These will be considered in the final invoice.
All fees for engineering services, ancillary costs, external services and miscellaneous shall be net without VAT and are stated in EURO.
Value added tax will be invoiced additionally in accordance with the statutory provisions, ordinances and decrees.
9.1 Terms of payment
If certain items are disputed at the time of the due date of the Contractor’s invoices, the undisputed part of the invoice amount may not be retained by the Client for this reason.
For the client the compensation with possible counterclaims, for whatever reason, is inadmissible.
The term of payment shall be 14 days from the date of invoice. In the event of default in payment, the statutory interest for the outstanding claim shall be due at a rate of 8 percentage points above the base interest rate, whereby the base interest rate applicable on the last calendar day of a half-year shall be decisive for the next half-year. In addition to the legal interest, it remains open to claim compensation for other damage caused to the Contractor by the Client or its authorized representative, in particular the necessary costs of out-of-court debt collection or collection measures, insofar as these are in reasonable proportion to the operational claim (§ 1333 ABGB). All claims are to be settled in EURO.
10. Other regulations
10.1 Confidentiality and secrecy
The contractor is obliged to maintain secrecy regarding all information provided by the client. The Contractor shall be obliged to maintain secrecy if and if the Client has a justified interest in such secrecy.
10.2 Publication
The contractor is entitled, and the client is obliged to state the name (company, business name, address) of the contractor in publications and announcements about the present work.
Furthermore, the contractor is entitled to publish the present work in whole or in part for advertising purposes, whereby no exact results, documents protected by copyright and other data subject to confidentiality shall be published.
10.3 Protection of intellectual property
All intellectual services of the Contractor – plans, calculations, concepts, solutions, methods and procedures – may only be used by the Client for the agreed purpose. Any deviating use of even parts of it requires the explicit consent of the contractor.
10.4 Duty to warn and inform
The contractor shall be obliged to fulfil his permanent duty of warning and informing the client about essential matters of performance.
This applies to service extensions or restrictions, to delays or postponements, as well as to additional measures due to unforeseeable circumstances, events and conditions imposed by the authorities.
If the client insists despite fulfilled warning and information obligation of the contractor on not complying with legal regulations, prescriptions of all kinds and safety rules or on not revoking orders and instructions contrary to the performance of the service, the contractor shall be liable for any damages resulting therefrom. Not liable for any resulting consequences.
The client’s duty to warn and inform the contractor shall apply to any conditions imposed or to be expected by the authorities as well as to decision and financing matters.
The contractor shall not be obliged to warn and inform the client of any documents, data and files made available by the client regarding the correctness and completeness of these documents, nor of any methods and procedures chosen by the client.
10.5 Warranty and liability
The contractor warrants that its services will be provided in an appropriate, professional and timely manner in accordance with the statutory provisions and the recognized rules of technology.
The recipient shall immediately inspect the work and services provided to him by the contractor (including individual partial work and services) and notify any complaints about faults within 14 days in writing or electronically with details of the faults.
A fault shall only be deemed to exist if the services provided deviate substantially from the contractually warranted and usually assumed characteristics or do not correspond to the state of the art. In particular, a fault shall not be deemed to exist if the service provided corresponds to the usually assumed characteristics and the work erected on its basis can be used as agreed.
IT-related measurement rounding shall not be deemed a fault.
In the event of a warranty claim, the contractor shall, at his own discretion, either repair the service or partial service confirmed by him as fault or carry out the recreation of the faulty services or partial services within a reasonable period. Other warranty claims of the client are hereby excluded.
The contractor shall only be liable for direct damages demonstrably caused by his services. Any claims for damages of the contractor against the contractor are excluded, unless the contractor has acted grossly negligent or willfully, unless it is a matter of personal injury. The existence of gross negligence or intent must be proven by the client.
Any claims for indirect damage and consequential damage including loss of profit, loss of production, loss of interest as well as other damage, however justified, shall be excluded.
The amount of the obligation to pay compensation shall be limited to three times the net remuneration for the order in question.
Several damaging events based on the same cause shall be considered as one damaging event. Furthermore, damage events which are based on similar, temporally related causes are deemed to be damage events if there is a legal, economic or technical connection between these causes.
The warranty period begins with the delivery of the respective service (including individual partial services) and ends after 24 months.
Any claims for damages due to improper fulfilment of the contract shall become statute-barred within three years of the conclusion of the service by the Contractor, but at the latest within three years of the final invoice being issued, unless the law provides for a shorter limitation period.
10.6 Withdrawal from the order
Withdrawal from the contract is only possible for an important reason which makes it impossible or unreasonable for the client or contractor to continue the contract relationship. Withdrawal must be declared by registered letter.
The following in particular shall be deemed to be good cause for the client:
– the contractor continues to behave in a manner contrary to the order – despite written objection;
– the contractor is in default with the provision of services despite a reasonable grace period;
– bankruptcy proceedings are instituted against the assets of the contractor or bankruptcy proceedings are dismissed for lack of assets to cover costs;
– an interruption in performance lasts or will last longer than 3 months.
Important reasons for the contractor are, in particular, if:
– his performance by the client is grossly impeded or frustrated;
– the client continues to behave in a manner contrary to the order – despite a written objection;
– the client continues – despite written reservation – to fail to comply with his agreed performance and cooperation;
– bankruptcy proceedings are opened against the assets of the client or bankruptcy proceedings are dismissed for lack of assets to cover costs;
– a service interruption lasts or will last longer than 3 months.
In the event of justified withdrawal from the contract on the part of the Client, the services rendered by the Contractor up to the time of withdrawal shall be remunerated by the Client.
In the event of justified withdrawal from the order on the part of the Contractor or in the event of unjustified withdrawal from the order on the part of the Client, the services rendered by the Contractor up to the time of withdrawal shall be remunerated by the Client in accordance with Clause 9, plus compensation in the amount of the loss of profit for the difference on the sum of the order.
Termination of the contractual relationship
The contractual relationship between the client and the contractor shall end after completion of the service.
The contractor’s services – e.g. to establish or enforce warranty claims and to monitor warranty work – shall be commissioned and remunerated separately.
10.7 Changes to the Offer
Changes and additions to the offer must be made in writing and signed.
In the event of changes to the content of the offer which result in a change to the performance fee, the performance fee shall be recalculated and adjusted.
10.8 Severability clause
Should any provision of this offer be or become invalid, the validity of the remaining provisions and the offer shall remain unaffected. In this case, the invalid provision shall be replaced by the valid provision which corresponds as closely as possible to the invalid provision. The same shall apply to any loopholes in the contract and to any contractual provisions that are not sufficiently specific.
10.9 Choice of law and place of jurisdiction – Extrajudicial dispute resolution
Austrian law shall apply exclusively to the exclusion of reference standards.
The parties agree that any disputes arising from or in connection with this contract, including questions of the valid conclusion of the contract, shall be subject to the exclusive jurisdiction of the competent court of law for 6020 Innsbruck.
Fulpmes, 26.07.2018