General Terms and Conditions - MASThave

General terms and conditions for civil engineering services (The English version is for informational purposes only. The legally valid version is the German one) (kurz AGB-ZT)

  1. Validity
    The services and offers as well as all contracts of the civil engineering office (the civil engineering company) concluded with the client (AG) are carried out exclusively on the basis of these General Terms and Conditions for Civil Engineering Services, regardless of the type of legal transaction. All of our declarations of intent under private law are to be understood on the basis of these General Terms and Conditions for Civil Engineering Services. Conditions of the client that contradict or deviate from our Terms and Conditions for Civil Engineering Services are not applicable unless we have expressly agreed to their validity in writing. Actions on our part to fulfil the contract do not constitute consent to contractual conditions that differ from our Terms and Conditions for Civil Engineering Services These terms and conditions apply as a framework agreement for all further legal transactions between the contracting parties.
  2. Conclusion of contract
    A) Our (fee) offers are non-binding and subject to changes. Oral promises, subsidiary agreements, etc. that deviate from these General Terms and Conditions for Civil Engineering Services or other written declarations of intent, in particular those made by employees, deliverers, etc., are not binding on us. The content of the brochures, advertisements, etc. used by us does not become part of the contract, unless expressly referred to.
    B) If our order confirmation contains changes compared to the order, these shall be deemed to have been approved by the contractual partner, unless the contractual partner immediately contradicts them. If offers are sent to us, the person making the offer is bound to it for a reasonable period of at least eight days from receipt of the offer.
    C) The content of the contract concluded with the contractual partner results primarily from the written contract including attachments, the power of attorney and these General Terms and Conditions for Civil Engineering Services. Point II. A) sentence 1 and 2 and B) do not apply to consumer transactions.
  3. Fee
    A) Our services are measured on the basis of the relevant service target for the subject area, the scope of the service, the service time and the circumstances in which the service is provided. If the parameters for the calculation change during the processing time, the services subsequently performed will be charged on the basis of the new parameters.
    B) Should the wage costs change between the conclusion of the contract and the provision of services due to collective bargaining agreements in the industry or internal agreements or should other cost centres relevant for the calculation or costs necessary for the provision of services, such as those for materials, energy, transport, external work, financing, etc. change , we are entitled to increase or decrease prices accordingly. Point III B) does not apply to consumer transactions.
    C) Additional services due to changes that are not attributable to the civil engineer and require reworking or reworking of individual areas, in particular as a result of official requirements, changes to relevant regulations and laws and as a result of changed client requests, are to be paid in addition, according to the increased scope of services.
  4. Payment conditions, default interest
    A) We are entitled to make our claims due by submitting partial invoices, which may include VAT at the statutory rate. Partial invoices are due within 14 calendar days, the final fee note within 30 calendar days, in each case after receipt of the invoice by the client. Without a special agreement, the deduction of a discount is not permitted.
    B) In the event of default in payment, we are entitled to charge default interest at the statutory rate from the due date.
  5. Withdrawal from contract
    A) In addition to the general legal reasons, we are also entitled to withdraw from the contract in the event of default in acceptance or other important reasons, such as in particular if the client interrupts the service for more than three months and the client prevents the service. In the event of withdrawal, the provisions of the ABGB apply.
    B) In the event of default in payment by the contractual partner, we are released from all further performance and delivery obligations and are entitled to withhold outstanding deliveries or services and to request advance payments or securities or - if necessary after setting a reasonable grace period - to withdraw from the contract.
    C) If the contractual partner withdraws from the contract - without being entitled to do so - or if he / she unjustifiably requests its cancellation, we have the choice of either insisting on the fulfilment of the contract or consenting to the cancellation of the contract; in the latter case point A) last sentence applies.
    D) In the event of a justified withdrawal by our contractual partners, we are only entitled to the remuneration for the services until the withdrawal becomes effective.
    E) The withdrawal must be declared in writing by means of a registered letter.
  6. Reminder and collection charges
    In the event of default in payment, the contractual partner has to reimburse us for the reminder fees of a flat rate of €15 plus postage per reminder and an amount of €5 per half-year for keeping records of the obligation in the dunning process. In addition, we are to be reimbursed by the debtor for all costs and expenses that we incur from the reminder or the collection of due payments, in particular the extrajudicial legal fees etc. necessary for appropriate legal prosecution.
  7. Retention of title
    A) We hand over all items and documents (plans, calculations, etc.) subject to retention of title and remain our property until full payment has been made. In the event of default, we are entitled to take them back at any time.
    B) If we reclaim or take back the item subject to retention of title, it is only a withdrawal from the contract if this is expressly declared.
    C) The client bears the full risk for the reserved item, in particular for the risk of destruction, loss or deterioration.
  8. Exclusion of set-off
    A) Compensation for any counterclaims with our (fee) claim, for whatever reason, is not permitted.
    B) Claims against us may not be assigned without our express consent. Point VIII A) does not apply to consumer transactions.
  9. Copyright
    A) Regardless of whether the work we have produced (e.g. plans, sketches, models, other documentation and documents) is protected by copyright or not, the client shall only receive the right to use the work for the contractually stipulated purpose under the condition of full performance of the contract.
    B) The contractor has the right to use the data and information collected from him / her in the course of order processing (also in digital form) without restriction. In particular, they can also be used to fulfil a new order.
  10. Storage or release of documents
    A) Original plans, original drawings and documents are generally kept with us, whereby we can also use the civil engineers' electronic document archive for this purpose. We are obliged to hand over copies of these documents in paper form to our contractual partner at his / her request for reimbursement of costs.
    If the handing over of documents in digital form is agreed, we do not assume any liability whatsoever. The client has to indemnify and hold us harmless in this regard. We assume no liability for errors or damage that could arise on the EDP system of the recipient of the digital data. We use IT programmes to avoid aggressive IT programmes (viruses, worms, etc.).
    B) Our storage obligation ends ten years after the final fee note has been submitted to the client. During this time, we can release ourselves from our duty of safekeeping by handing over the original documents to the contractual partner.
  11. Retention
    In the event of a justified complaint except in cases of a reversal of the transaction, the contractual partner is not entitled to withhold the entire amount of the fee, but only up to a portion of the gross fee that corresponds to the expected repair effort or damage. Item XI does not apply to consumer transactions.
  12. Default
    Insofar as the contractual partner has to pay his payment obligation in partial amounts, it is agreed that if only one installment is not paid on time, all outstanding partial services become due immediately without setting a further grace period.
    B) Point XII applies to consumer transactions, provided that we have provided our service in full, even a partial payment in arrears by the client (s) is due at least six weeks, and if we provide the client with a grace period of at least two weeks and have warned him/her of the upcoming notice of default.
  13. Warranty, inspection and notification obligation
    A) In the event of a rectifiable defect, we shall meet the contractual partner's warranty claims either by replacement, repair within a reasonable period or a price reduction, at our discretion. Claims for damages by the client aimed at remedying the defect can only be asserted if we are in default of fulfilling the warranty claims.
    B) The contractual partner must notify us in writing of defects that were not complained about in writing at the time of acceptance, but no later than within a week of their discovery. If a complaint is not made or not made in good time, our performance is deemed to have been approved. Points XIII A) and B) do not apply to consumer transactions.
    C) The warranty period for all services provided by us is three years from the conclusion of the contractually agreed overall service.
    D) In the case of consumer transactions, we can exempt ourselves from the client's claims for cancellation of the contract or for a reasonable price reduction in the event of a generic debt by exchanging the defective item for a defect-free item within a reasonable period of time. We can exempt from the obligation to grant a reasonable price reduction by effecting an improvement within a reasonable period in a manner that is reasonable for the consumer or by adding what is missing.
  14. Compensation
    A) All claims for damages are excluded in cases of slight negligence. The injured party has to prove the existence of slight or gross negligence.
    B) Claims for damages become statute-barred two years from the end of our activity, but at the latest within two years from the submission of the final fee, unless the law provides for a shorter limitation period.
    The provisions on compensation for damages contained in these General Terms and Conditions for Civil Engineering Serivces or otherwise agreed also apply if the claim for damages is asserted in addition to or instead of a warranty claim.
    C) Our plans and other documents may only be used for execution after any necessary official approval and express approval by us, otherwise claims for damages are excluded.
    D) Regarding point XIV A) and B) first sentence, the regulations stipulated there apply to contracts with consumers within the meaning of the Consumer Protection Act.
  15. Choice of law, place of jurisdiction
    Austrian law applies. The applicability of the UN sales law is expressly excluded. The contract language is German. The Parties agree to Austrian domestic jurisdiction. The competent court at our office has exclusive local jurisdiction to resolve all disputes arising from this contract. Point XV, last sentence, does not apply to consumer transactions.
  16. Place of fulfillment
    The place of performance is our office.
  17. Change of address
    The contractual partner is obliged to notify us of any changes to his / her residential or business address as long as the legal transaction that is the subject of the contract has not been completely fulfilled by both parties. If the notification is omitted, declarations are deemed to have been received even if they are sent to the last known address.
  18. Severability clause
    Should individual provisions of these General Terms and Conditions for Civil Engineering be or become ineffective or unenforceable in whole or in part, this does not affect the validity of the remaining conditions