General Terms and Conditions of Austrian Engineering Firms – B2C

(between engineering firms as businesses and clients as consumers pursuant to Section 1 of the Austrian Consumer Protection Act (KSchG))

1. Applicability of the General Terms and Conditions and Deviations

a) The following General Terms and Conditions apply to all current and future contracts between the client as a consumer (hereinafter referred to as "consumer") and the engineering firm.

b) Insofar as mandatory legal provisions – in particular those under the Austrian Consumer Protection Act (KSchG) and the Austrian Distance Selling Act (FAGG) – deviate from the following General Terms and Conditions, these provisions shall prevail.

c) The applicability of these General Terms and Conditions shall not be affected by the invalidity of individual provisions. An invalid provision shall be replaced by another valid and permissible provision that most closely reflects the intent and purpose of the invalid provision.

2. Offers, Ancillary Agreements

a) Unless otherwise stated, the engineering firm's offers are non-binding with regard to all specified details, including fees.

b) For the preparation of a cost estimate within the meaning of Section 1170 of the Austrian Civil Code (ABGB) by the engineering firm, the consumer is only required to pay a fee if they have been informed of this payment obligation beforehand.

c) If a cost estimate from the engineering firm forms the basis of the contract, its accuracy is deemed guaranteed unless expressly stated otherwise.

d) If an order confirmation from the engineering firm contains changes compared to the order, these changes are deemed approved by the consumer if the consumer agrees to the change within a period specified by the engineering firm. Such a requirement for approval does not apply if the change or deviation is reasonable for the consumer – because it is minor and objectively justified. Anything beyond this must be demonstrably negotiated individually between the engineering firm and the consumer.

3. Placing an Order

a) The type and scope of the agreed services are defined by the contract, the power of attorney, and these General Terms and Conditions.

b) Unless expressly agreed otherwise in a specific case, contracts between the engineering firm and the consumer are concluded on the engineering firm's business premises. Declarations made by the consumer outside these premises (e.g., on the construction site or by email) will only become part of the contract if they are expressly referenced on the engineering firm's business premises.

c) In the case of a distance selling contract or an off-premises contract as defined by the Distance Selling Act (FAGG) or the Consumer Protection Act (KSchG), the engineering firm will fulfill its legally mandated information obligations. The consumer is obligated to point out any gaps in the information provided, should they be noticed or obvious.

d) The engineering firm undertakes to properly execute the assigned task in accordance with generally accepted engineering standards and principles of economic efficiency.

e) The engineering firm may engage other appropriately authorized parties to fulfill the contract and issue orders to them in the name and on behalf of the consumer. The engineering firm is obligated to inform the consumer of this intention in writing and to give the consumer the opportunity to object to this subcontracting within 10 days.

f) The engineering firm may also engage other appropriately authorized parties as subcontractors to fulfill the contract and issue orders to them in the name and on behalf of the engineering firm. However, the engineering firm is obligated to inform the consumer in writing if it intends to have orders carried out by a subcontractor and to give the consumer the opportunity to object to this subcontracting within one week; in this case, the engineering firm must carry out the order itself.

g) The engineering firm will inform the consumer in the notification of the legal consequences of failing to object within the period specified in points 3.e and 3.f. In both cases, the consumer must submit a written statement regarding the further course of action.

4. Warranty and Damages

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

b) Claims for rescission of the contract and price reduction are excluded. Claims for rectification or completion of missing items must be fulfilled by the engineering firm within a reasonable period, which should generally be one-third of the period agreed upon for the performance of the service. Claims for damages due to delay cannot be asserted within this period.

c) The engineering firm must perform its services with the care expected of a professional (§1299 ABGB).

d) If the engineering firm, in breach of its contractual obligations, culpably causes damage to the client, its liability for compensation for the resulting damage is limited as follows in cases of slight negligence, unless otherwise stipulated in a specific case:

aa) In the case of contract termination and personal injury, there is no limitation;

bb) In all other cases, the following limitations apply: - for a contract sum up to €250,000.00: a maximum of €12,500.00; - for a contract sum exceeding €250,000.00: 5% of the contract sum, but not exceeding €750,000.00.

cc) Liability for consequential damages and lost profits is excluded even in cases of gross negligence, unless otherwise stipulated in a specific case.

5. Contract Termination

a) Contract termination is only permitted for good cause.

b) If the engineering firm is in default with a service, the client may only withdraw from the contract after setting a reasonable grace period; this grace period must be set by registered letter.

c) If the client is in default with a partial service or an agreed cooperation activity, which renders the execution of the contract by the engineering firm impossible or significantly hinders it, the engineering firm is entitled to withdraw from the contract.

d) If the engineering firm is entitled to withdraw from the contract, it retains the right to the entire agreed fee, as is also the case with unjustified withdrawal by the client. Furthermore, Section 1168 of the Austrian Civil Code (ABGB) applies; in the case of justified withdrawal by the client, the services rendered by the engineering firm must be compensated by the client.

6. Fees, Scope of Services

a) Unless otherwise stated, all fees are quoted in EURO.

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

c) Offsetting against any counterclaims, for whatever reason, is not permitted.

d) Unless otherwise agreed, the non-binding costing recommendations published by the Association of German Engineering Firms (Fachverband Ingenieurbüros) form part of the contract.

e) Unless expressly agreed otherwise, payment is due without deductions within 30 days of the invoice date to the account of a bank with a domestic branch specified by the engineering firm. In the event of late payment, interest at a rate of 9.2% per annum above the ECB base rate, plus reminder fees, is payable.

7. Place of Performance

The place of performance for all services is the registered office of the engineering firm.

8. Confidentiality

a) The engineering firm is obligated to maintain the confidentiality of all information provided by the client.

b) The engineering firm is also obligated to maintain the confidentiality of its planning activities if and for as long as the client has a legitimate interest in such confidentiality. After completion of the project, the engineering firm is entitled to publish the work, in whole or in part, for advertising purposes, unless otherwise agreed in the contract.

9. Protection of Plans

a) The engineering firm reserves all rights and uses to the documents it has created (in particular, plans, brochures, and technical documents).

b) Any use (in particular, editing, execution, reproduction, distribution, public presentation, or making available) of the documents or parts thereof is only permitted with the express consent of the engineering firm. All documents may therefore only be used for the purposes expressly specified in the contract or in a subsequent agreement.

c) The engineering firm is entitled, and the client is obligated, to include the name (company name, business name) of the engineering firm in all publications and announcements concerning the project.

d) In the event of a breach of these provisions for the protection of documents, the engineering firm is entitled to a penalty in the amount of twice the reasonable fee for the unauthorized use, without prejudice to any further claims for damages. This penalty is not subject to judicial mitigation. The burden of proof that the client did not use the engineering firm's documents rests with the client.

10. Choice of Law

Contracts between consumers and engineering firms are governed exclusively by Austrian law.

 

General Terms and Conditions - B2B

1. Validity of the General Terms and Conditions and deviations

a) Die folgenden Allgemeinen Geschäftsbedingungen gelten für alle gegenwärtigen und künftigen Verträge zwischen dem Auftraggeber in seiner Eigenschaft als Unternehmer und dem Ingenieurbüro. b) Abweichungen von diesen Bedingungen und insbesondere auch Bedingungen des Auftraggebers gelten nur, wenn sie vom Ingenieurbüro ausdrücklich und schriftlich anerkannt und bestätigt werden.

2. Offers, Ancillary Agreements

a) Unless otherwise stated, the engineering firm's offers are non-binding with regard to all specified details, including fees.

b) If an order confirmation from the engineering firm contains changes compared to the order, these changes are deemed approved by the client unless the client objects in writing without undue delay. c) Agreements must generally be in writing.

3. Order Placement

a) The type and scope of the agreed services are defined in the contract, the power of attorney, and these General Terms and Conditions.

b) Amendments and additions to the order require written confirmation from the engineering firm to become part of this contractual relationship.

c) The engineering firm undertakes to properly execute the order placed with it in accordance with generally accepted engineering standards and principles of economic efficiency.

d) The engineering firm may engage other appropriately qualified parties to fulfill the contract and issue orders to them in the name and on behalf of the client. However, the engineering firm is obligated to inform the client of this intention in writing and to give the client the opportunity to object to this engagement of a third party within 10 days.

e) The engineering firm may also engage other appropriately qualified parties as subcontractors to fulfill the contract and issue orders to them in the name and on behalf of the engineering firm. However, the engineering firm is obliged to inform the client in writing if it intends to have orders carried out by a sub-planner, and to give the client the opportunity to object to this assignment to the sub-planner within one week; in this case, the engineering firm must carry out the order itself.

4. Warranty and Damages

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

b) Claims for rescission of the contract and price reduction are excluded. Claims for rectification or completion of missing items must be fulfilled by the engineering firm within a reasonable period, which should generally be one-third of the period agreed upon for the performance of the service. Claims for damages due to delay cannot be asserted within this period.

c) The engineering firm must perform its services with the care expected of a professional (§1299 ABGB).

d) If the engineering firm, in breach of its contractual obligations, culpably causes damage to the client, its liability for compensation for the resulting damage is limited as follows in cases of slight negligence, unless otherwise stipulated in a specific case:

In the event of contract termination and personal injury, there is no limitation. In all other cases, the following limitations apply: - for a contract sum up to €250,000.00: a maximum of €12,500.00; - for a contract sum exceeding €250,000.00: 5% of the contract sum, but not exceeding €750,000.00. Liability for consequential damages and lost profits is excluded even in cases of gross negligence, unless otherwise stipulated in a specific case.

5. Termination of Contract

a) Termination of the contract is only permitted for good cause.

b) If the engineering firm is in default with a service, the client may only terminate the contract after setting a reasonable grace period; this grace period must be set by registered letter.

c) If the client is in default with a partial service or an agreed cooperation activity, which renders the execution of the contract by the engineering firm impossible or significantly hinders it, the engineering firm is entitled to terminate the contract.

d) If the engineering firm is entitled to terminate the contract, it retains the right to the entire agreed fee, as is also the case with unjustified termination by the client. Furthermore, Section 1168 of the Austrian Civil Code (ABGB) applies; in the case of justified termination by the client, the client must compensate the engineering firm for the services already rendered.

6.) Fees, Scope of Services

a) Unless otherwise stated, all fees are quoted in EURO.

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

c) Offsetting against any counterclaims, for whatever reason, is not permitted.

d) Unless otherwise agreed, the non-binding cost calculation recommendations published by the Association of German Engineering Firms (Fachverband Ingenieurbüros) form part of the contract.

e) Unless expressly agreed otherwise, payment is due without deductions within 30 days of the invoice date to the account of a bank with a domestic branch specified by the engineering firm. In the event of late payment, interest at a rate of 9.2% per annum above the ECB base rate, plus reminder fees, is payable.

7. Place of Performance

The place of performance for all office services is the registered office of the engineering firm.

8. Confidentiality

a) The engineering firm is obligated to maintain the confidentiality of all information provided by the client.

b) The engineering firm is also obligated to maintain the confidentiality of its planning activities if and for as long as the client has a legitimate interest in such confidentiality. After completion of the project, the engineering firm is entitled to publish the work that is the subject of the contract, in whole or in part, for promotional purposes, unless otherwise agreed in the contract.

9. Protection of Plans

a) The engineering firm reserves all rights to and uses of the documents it has created (in particular plans, brochures, and technical documents).

b) Any use (in particular, editing, execution, reproduction, distribution, public presentation, or making available) of the documents or parts thereof is only permitted with the express consent of the engineering firm. All documents may therefore only be used for the purposes expressly specified in the order or in a subsequent agreement.

c) The engineering firm is entitled, and the client is obligated, to include the name (company name, business name) of the engineering firm in publications and announcements concerning the project.

d) In the event of a breach of these provisions for the protection of documents, the engineering firm is entitled to a penalty in the amount of twice the reasonable fee for the unauthorized use, without prejudice to any further claims for damages. This penalty is not subject to judicial mitigation. The burden of proof that the client did not use the engineering firm's documents lies with the client.

10. Choice of Law, Jurisdiction

a) Contracts between the client and the engineering firm are governed exclusively by Austrian law.

b) For all disputes arising from this contract, the parties agree that the competent court at the engineering firm's registered office shall have jurisdiction.