GTC

General Terms and Conditions
of Kaufmann Bausysteme GmbH
(FN 230403 d)

Preamble
Kaufmann Bausysteme GmbH (hereinafter referred to as the Client or the CO) awards contracts exclusively on the basis of these General Terms and Conditions (hereinafter referred to as GTC ). The Contractor (hereinafter referred to as the Contractor for short) is the company commissioned by the Client to provide services. The principal is the client of the client.

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1. general information

1.1 The following provisions shall apply in the following order as integral parts of the contract and as the content of the contract upon conclusion of the transaction, whereby in the event of contradictions between the technical or contractual bases (including contradictions regarding the order of the contractual bases between the contract for work and services and the GTC), the strictest provision shall apply in favour of the Client: 1.1.1 The written agreement by which the contract was concluded (the contract for work and services including enclosures)

1.1.2. the (award) negotiation protocol including enclosures

1.1.3. the present General Terms and Conditions

1.1.4. a time schedule

1.1.5. the list of services and the associated enclosures

1.1.6. the plans, execution documents and samples declared to be contractually binding

1.1.7. the regional building regulations (building law) relating to the construction project in question as well as the relevant decisions of the authorities, with all associated annexes and the conditions imposed, in particular the building permit issued for the construction project described in the contract for work

1.1.8 ÖNORM B 2110 in the latest version dated 15 March 2013, with the exception of clause 12.3, which is excluded with regard to a limitation of liability and unless otherwise agreed in the concluded contract for work and services or here in the GTC in relation to ÖNORM B 2110. The ÖNORM is available on the business premises of the Principal. In addition, it can be obtained at any time from the Austrian Standards Institute, A-1021 Vienna, Heinestraße 38, Postfach 130, http://www.on-norm.at .

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1.1.9 The construction site regulations (if available)

1.1.10. The contractor’s offer

1.2 These GTC shall take precedence over the Contractor’s general terms and conditions. Any provisions of the Contractor that conflict with or deviate from these GTC shall only apply if the Client expressly agrees to them in writing. These GTC shall also apply if the Customer accepts the Contractor’s offer without reservation in the knowledge that the Contractor’s terms and conditions conflict with or deviate from these GTC. The Contractor’s business or other terms and conditions shall not apply.</p

1.3 The Contractor acknowledges that the Client is in negotiations with several tendering organisations. A contract shall only be concluded between the parties when the relevant contract for work and labour is concluded in writing between the Client and the Contractor.</p

1.4 The place of fulfilment of the Contractor’s services is/are generally the construction site(s). The Client shall be entitled to specify other places of fulfilment in individual cases.</p

2. awarding of contract, placing of order

2.1 The submission of offers shall be free of charge for the Client

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2.2 Should the contract not become legally effective for any reason whatsoever, the Contractor shall not be entitled to any claims for reimbursement of costs whatsoever.

2.3 The acceptance of the order by the Contractor must be made exclusively in writing. Unilateral amendments or supplements to the contract for work and/or its annexes by the Contractor shall in any case be legally invalid without the written consent of the Client and shall be deemed not to have been attached.</p

2.4 Deliveries and services that the Contractor provides without being commissioned by the Client shall be removed immediately if the Client so requests. The Contractor shall compensate for any damage incurred. Exceptions require written confirmation by the Client.</p

2.5 The Contractor shall only have provided its deliveries and services in accordance with the contract when they have been accepted by the Client (cf. clause 19). The Contractor shall be liable for the risk of damage occurring before acceptance. In the event that the Client withdraws the order from the Contractor due to the Contractor’s delay in performance and has to arrange for substitute performance, the number of calendar days from the completion date guaranteed by the Contractor up to the day on which completion actually takes place within the scope of the substitute performance shall apply with regard to the calculation of the contractual penalty.

3. planning and execution documents

3.1 The contractor shall receive a single copy of all planning documents. The Contractor may receive documents in excess of this number against reimbursement of costs. The planning documents shall remain the property of the Client.</p

3.2 The Contractor undertakes not to make the plans/drawings, other documents or sample models provided to it for the provision of the contractual services accessible to third parties or to use them for other purposes.

3.3 As soon as the Contractor no longer requires the planning documents and/or samples provided, but at the latest after payment of the final invoice, they must be returned to the Client together with all copies.

3.4 Planning documents prepared by the Contractor must be submitted to the Client for review or written approval prior to execution. It is expressly pointed out that this review or approval neither reduces nor changes the Contractor’s performance obligations. Furthermore, no obligation of the Client to check or warn with regard to the plans shall be triggered.</p

4. prices, calculation, invoicing, payment

4.1 If lump-sum prices are agreed, all ancillary services that are necessary or required for the proper and professional provision of the main service in accordance with the agreement shall be deemed to be included in the lump-sum price and compensated for with it. The prices offered therefore include all necessary deliveries and services, including all peripheral and ancillary services, which are necessary for the contractual, flawless production of the described work services or workpieces in accordance with all official regulations, the relevant standards and the recognised rules of technology until they are fully usable, even if necessary individual units are not mentioned in the service description and this would be incomplete. In the case of lump-sum prices, the Contractor may therefore not invoke the fact that individual services or partial services that are necessary to achieve the success owed are not expressly mentioned in the service description or in other parts of the contract.

4.1.1 If unit prices are agreed, these shall in any case be fixed prices until contractual completion, with the Contractor guaranteeing the absence of defects as well as the price and the completion date.

4.2 The agreed fixed price (see clause 4.1.1.) is a price that excludes any subsequent claim. This shall also apply in the event that wage and material price increases and the like occur during the construction period in the main or ancillary construction trades.</p

4.3 The fixed price quoted is therefore for complete, finished and conditional work including all ancillary services. Also included are those services which are not shown and mentioned in the planning documents and service descriptions, but which are necessary in order to realise the service objective determined by the subject matter of the contract and which were or should have been recognisable by the contractor on the basis of the specialist knowledge to be expected of him at the time of conclusion of the contract, as well as the provision of specialist experts who are necessary for the production of the work. The involvement shall be exclusively on behalf of and at the risk of the Contractor. This includes in particular the services and costs listed in the following points:</p

4.3.1 The construction and maintenance of the construction site facilities of any necessary construction roads and paths, barriers and fences, insofar as these are necessary for the execution of the Contractor’s services, in the required design, as well as their removal and restoration to their original condition, in each case in coordination with the Client’s local construction supervision

4.3.2 All safety measures necessary to carry out the work described in the service and equipment description

4.3.3. all transport, handling and scaffolding services required to carry out the work described in the description of services and equipment, as well as any proper storage of deliveries, materials provided and reusable components, including any necessary relocation until use

4.3.4 The costs for the utilisation of third-party land by the contractor in the course of the construction work, in particular for construction site equipment, material storage, access and exit

4.3.5. the constant cleaning of the construction site and the adjacent traffic areas during the entire construction period. The Principal is authorised to order such cleaning if necessary

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4.3.6. the fulfilment of all official approvals, notifications, applications, prescribed safety precautions and inspections, including the submission of findings

4.3.7. the erection, provision, operation (including maintenance and repair) and dismantling of construction equipment and construction barracks until the work has been accepted

4.3.8. participation in construction site meetings, meetings with authorities or organisations similar to authorities, including the provision of all necessary certificates and permits free of charge, insofar as they are related to the Contractor’s performance

4.3.9. all preparatory work by the Contractor necessary for the actual execution of the work, in particular the preparation of plans, drawings and the like, including the involvement of specialised experts

4.3.10. all additional costs, in particular for overtime, extra shifts, bad weather, work in frost and snowfall, unless they are expressly ordered in writing by the client, but in no case if they are necessary to meet the agreed execution and deadlines. Winter work shall not be remunerated separately

4.3.11. All measures required to protect the construction or the property

4.3.12. The Contractor shall be obliged to check the dimensions of the drawings and aids provided to it by the Client before commencing the relevant work and the existing structure and to take the necessary measures to remedy the damage, waiving any increase in remuneration

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4.4 The Contractor declares that it has inspected the construction site before submitting its offer, has familiarised itself with the local conditions, has informed itself about all circumstances relating to the execution of services, the location of any installations and the type and quality of the materials described in the description of services and equipment.

4.5 Changes to the agreed work, in particular changes in quantity, or even the cancellation of a (partial) service, shall have no influence on the agreed prices. Any disadvantage incurred by the Contractor as a result shall be borne by the Contractor alone. A new execution date shall be agreed prior to the execution of the changed service, taking into account the schedule components of the original order (main order), whereby the Contractor shall be obliged to do everything in its power to enable this date to be coordinated with the Client’s construction schedule.

4.6 The Client shall therefore be entitled to cancel individual groups of services in whole or in part even after the contract has been awarded, in which case any agreed lump sum price shall be reduced by the sum of the cancelled services.

4.7 At the request of the Client, the Contractor shall provide mass calculations during construction within 14 days at the latest.

4.8 The Principal shall only commission labour management work in writing, whereby the provision of services shall be documented and submitted to the Principal on a daily basis. The Contractor shall not be entitled to any remuneration for work that has not been commissioned in writing.</p

4.9 If it is necessary for the completion of the overall construction project, the Contractor shall be obliged, at the request of the Client, to provide its services in sections without the Contractor being entitled to any additional remuneration claims as a result.

4.10. If a hindrance occurs before or during the Contractor’s execution or if the Contractor exceeds the agreed execution dates and the Client is not solely responsible for the hindrance or overrun, the Contractor shall only be entitled to compensation for additional costs, in particular wage and material price increases, to the same extent as these additional costs would have been incurred and remunerated if the agreed execution dates had been met.

4.11. Progress invoices (partial invoices) are permissible in accordance with the payment schedule to be agreed in the contract for work and services.</p

4.12. The invoices must be submitted by the Contractor in the type and number requested by the Client.

4.13. At the request of the Client, the Contractor shall produce invoicing documents (service lists, invoicing plans, etc.) in a verifiable form free of charge and enclose them with the invoices. All dimensions and services required for the invoice that can no longer be determined later must be entered by the Contractor in consecutively numbered dimension sheets or in the daily construction report.

4.14. The submission of the final or partial final invoice excludes subsequent claims of any kind whatsoever. Reservations of any kind whatsoever are invalid and irrelevant. The final invoice shall be submitted immediately after completion of all services of the order and rectification of any defects identified during acceptance, including documentation.</p

4.15. Any discount stated in the offer shall be granted on all individual prices as well as on all amended and additional services.

4.16. In the event of discrepancies regarding the pricing of any supplements and/or additions, the Contractor shall be obliged to disclose its quotation calculation within a maximum of 2 days at the request of the Client.

4.17. If services are not provided by the Contractor in accordance with the contract, the Client shall be entitled to withhold payments in whole or in part until fulfilment by the Contractor.

4.18. Subsequent changes to the execution at the request of the client and additional costs caused by subsequent official orders require a signed supplementary order. Unless otherwise agreed, these shall be invoiced on the basis of measurements and the fixed and unit prices on which these GTC are based. In this respect, the Contractor is obliged to disclose its calculation of the main order at the request of the Client within 2 days at the latest.

4.19. If the Contractor is of the opinion that individual tender provisions or parts of the tender specifications and the technical documents are unclear or incomplete, it must request clarification or additions at the latest during the contract award negotiations; otherwise, the Client’s interpretation shall apply. Any additional claims or additional costs arising from this title cannot be met. If the contractor comes to the conclusion that additional services not listed in the specifications are required for the proper provision of services, it must describe this clearly and unequivocally and also demonstrably bring this to the attention of the client at the latest in the contract award negotiation meeting, otherwise the contractor cannot assert any claims for additional costs due to failure to do so.</p

5. supplementary offers

5.1 If services are required that are not already to be provided by the Contractor in accordance with the provisions of this contract, the Contractor shall nevertheless perform them, unless this is completely unreasonable for the Contractor.

5.2 The costs or the obligation to bear the costs shall then be determined in accordance with the contract, if applicable.

5.3 If the Contractor carries out modification and/or additional work at the Client’s request without a written agreement, the Contractor shall be entitled to additional remuneration only if it notifies the Client of this in writing within a period of no more than 7 days after receipt of the order. If the Contractor carries out the modification and/or additional work before the expiry of this period, the notification must be made in good time before the start of the work so that the Client has the opportunity to make a decision. With regard to the forfeiture of additional costs, reference is made to Section 4.19.

5.4 The price for the change and additional orders shall be determined on the basis of the main order. For this purpose, all cost factors and calculation bases including agreed discounts of the main order must be demonstrably used.</p

5.5 If no agreement can be reached on the price, an expert shall be called in as an arbitrator. The costs of this expert shall be borne equally by the contracting parties.</p

6. cost sharing by the contractor

6.1 The electricity and water connections required for the fulfilment of the contractual services shall be provided by the Client. The Contractor shall be entitled to draw (construction) electricity and (construction) water (if available) for the provision of its services. For consumption costs, 0.5 per cent of the gross billing amount for water and 0.4 per cent of the gross billing amount for electricity shall be withheld from all invoices. Other costs, e.g. for heating, washing and toilet facilities, etc. are the responsibility of the contractor. The following point 7 applies to insurance.

6.2 The scaffolding required for the performance of its services shall be provided by the contractor.

7. insurance

7.1 The Contractor confirms that it has taken out liability insurance with cover of at least five times the gross order amount for property damage, personal injury and financial loss and shall provide evidence of its validity immediately upon request by the Client.

7.2 Furthermore, the Contractor shall insure the building or the building services installations and the delivered materials, components and objects adequately against fire or other damage at its own expense, with the provision that in the event of damage the compensation is to be paid out to the Client.

7.3 Construction work insurance shall be taken out by the Client. The Contractor shall contribute 0.3 per cent of the gross final invoice amount to the relevant costs. The deductible for each claim shall be € 2,000.00 plus statutory VAT.</p

8. security deposit, cover, liability and building damage retention

8.1 The Contractor undertakes to provide a deposit as security for the services to be provided in the form of an abstract bank guarantee from a recognised credit institution (banking company) in the EU area with a term of 6 months beyond the agreed completion date. The deposit shall amount to 20 per cent of the gross final invoice amount. If the order is extended, the deposit shall be adjusted accordingly. The costs of the security deposit shall be borne by the Contractor.</p

8.2 The Client shall be entitled to withhold a security deposit from the partial invoices and instalment payments amounting to 10 percent of the respective net invoice amount (non-interest-bearing). The retained amount shall be paid out with the final invoice. A liability retention of 5 per cent shall be withheld from the final invoice for any warranty claims and/or claims for damages. The Contractor may exempt itself from withholding the retention fee by providing an abstract bank guarantee from a recognised credit institution (banking company) in the EU in the amount of the retention fee and with a term of 5.5 years.

9. proof of authorisation, employee regulations, construction site

9.1 By signing the contract for work and services, the Contractor declares that it is fully authorised to perform the services described in the contract. In the absence of a corresponding authorisation, the Client shall have the right to withdraw from the contract, whereby the Contractor shall be obliged to fully indemnify the Client.</p

9.2 The instructions and orders of the construction coordinator must be followed. The Contractor shall be responsible for ensuring the necessary occupational health and safety measures for its employees in accordance with the applicable regulations (e.g. safety clothing, fall protection, scaffolding, mandatory helmets, alcohol ban, etc.) and shall instruct them accordingly carefully and in a site-specific manner. Personal protective and safety clothing etc. must be worn by the Contractor’s employees on their own responsibility. Helmets must be worn on the construction site without exception.</p

9.3 The consumption of alcohol before entering or on the construction site is strictly prohibited. In the event of non-compliance, the person in question will be expelled from the construction site immediately.</p

9.4 The Contractor shall carry out a final cleaning of the services provided by it before acceptance by the Client.

9.5 The Contractor shall protect the services performed by it against damage, theft, etc. until acceptance.

9.6 The Contractor shall be obliged to properly dispose of waste and debris from the entire scope of its services and shall in particular comply with the provisions of packaging regulations, those of hazardous waste disposal and all other relevant regulations. In the event of improper waste separation/disposal by the Contractor, a contractual penalty of 1 per cent of the gross final invoice amount per violation shall be payable to the Client immediately, up to a maximum of 5 per cent of the gross final invoice amount. Final cleaning, rubbish and debris removal etc. shall be carried out by the Contractor at its own expense. If the request to clean the Contractor’s work area or the construction site is not complied with, the Client shall have the right to order construction cleaning including professional removal of waste etc. at the Contractor’s expense. In the case of direct allocation, the costs incurred shall be deducted from the respective invoices; in the case of indirect allocation, the costs shall be allocated in accordance with the construction damage allocation.</p

9.7 The installation of the Contractor’s company advertising boards on or in front of the construction site is not permitted. The Contractor may, at its own expense, install a company billboard in the joint advertising frame erected on the construction site at the location provided for this purpose.</p

10. duty to warn

10.1 The Contractor shall immediately examine all parts of the contract and work documents (plans, descriptions, etc.) and the situation on the construction site or all preliminary work by other professionals in detail with regard to their suitability for producing the result owed by him and shall inform the Client in writing of any defects, concerns and risks. The Contractor declares that, before signing the contract for work and services, it has carefully familiarised itself with the condition, findings, type of execution, any defects, the extent of the existing trades and those to be performed by it and, above all, the contractual situation from both an actual and a legal perspective.</p

10.2 Accordingly, he confirms that he can fulfil the required services with reference to the deadline completion guarantee, quantity and price guarantee and assumes full liability for this. If the Contractor has not issued a written warning, it confirms by concluding the corresponding contract for work and services that it considers all services requested in the tender documents to be appropriate for the construction objective to be achieved and to comply with the statutory provisions and the generally recognised rules of technology. For the duty to warn, see also point 4.19.</p

10.3 The Contractor shall inform itself in good time about risks that may arise for neighbouring properties and buildings as a result of its services. It shall take suitable measures to prevent or eliminate such damage. He shall indemnify and hold the Client harmless in this respect. The Contractor shall also fully indemnify and hold the Client harmless for all claims that are brought against the Client due to the Contractor’s activities, e.g. from claims under neighbouring law (Section 364 ABGB), regardless of fault. The inspections to be carried out and the measures to prevent such risks are covered by the agreed remuneration.</p

11. representative

11.1 If an authorised representative of the Client has been named to the Contractor, only this representative shall be entitled to issue instructions/orders to the Contractor within the meaning of this contract.

11.2 For the entire duration of the services owed by the Contractor (including deliveries), the Contractor or a personal representative authorised by the Contractor shall be present at the construction site immediately upon request to ensure their proper performance and for the purpose of coordination with other professionals employed on the construction site and shall attend the construction site meetings convened by the Client. The Contractor’s representative must have the appropriate expertise. In addition, the construction site must be permanently staffed with the necessary number of workers and supervisory bodies for the duration of the services owed by the Contractor (including deliveries) until overall completion in order to ensure that the work is completed on time.

11.3 The Contractor is advised that, unless otherwise authorised in writing by a representative (consultant) employed by the Client, any commissioning of services that go beyond the contractually agreed scope may only be carried out in writing by the Client (or its bodies in a number authorised to represent it) itself. If the Client does not issue such a written order, the Contractor shall lose the right to (additional) remuneration.</p

12 Warranty, liability, transfer of risk, retention of title

12.1 The Contractor warrants the proper and professional execution of the commissioned services and the agreed quality, as well as compliance with relevant regulations and standards, such as in particular the technical ÖNORMEN, the RVS, the funding guidelines and the EU standards issued by the European Standardisation Institute or, in the absence of such ÖNORMEN or EU standards, the DIN standards. Should the Contractor fail to fulfil these obligations in full, it shall be liable for all resulting disadvantages, including all consequential damages. The warranty period shall commence upon formal acceptance of the Contractor’s work by the Client without objection. Partial services are neither formally accepted nor accepted by use. The warranty period is 10 years for all services in the roof area, including all blacktop and roofing work, as well as all other exterior waterproofing, building plumbing work, services relating to sealing concrete and the draining of masonry as well as expansion joint profiles and connections. The warranty period is 5.5 years for all services relating to insulating glazing, facades, windows and exterior doors, moisture insulation inside the building, the construction of terraces, pavements and carriageways, services relating to replacement planting which are subject to the law on the protection of existing trees or comparable provincial regulations. The warranty period for all other services is also 5.5 years. Before the warranty period expires, a joint final assessment shall be carried out, which must be arranged by the contractor. Otherwise, the expiry of the warranty period shall be suspended until a joint final assessment has been carried out and, if applicable, until the defect rectification services have been taken over (see Section 19.6. for more details). Insofar as the Principal is obliged to provide a longer warranty period in accordance with statutory provisions or on the basis of an agreement between the Principal and the Client, the warranty period for the Contractor’s work shall be extended accordingly. The extrajudicial notification of a defect (notice of defect) by the Client shall extend the period for the active judicial (legal) assertion of all claims associated with the notified defect by an additional year in each case. The Client reserves the right to assert the defect (notified to the Contractor out of court in due time) by way of defence in accordance with Section 933 ABGB. Defects that occur during the warranty period shall be deemed to be covered by the Contractor’s warranty obligation, unless the Contractor proves that these defects were caused by improper use, inadequate care or maintenance after the start of the warranty period. The possible obligation of the Client to report defects in accordance with §§ 377 and 378 of the Austrian Commercial Code (UGB) as soon as possible is expressly excluded. Failure to give notice of defects shall not result in a waiver of claims, even in the case of obvious defects. The Contractor waives the assertion of any objections or defences in this respect. The Contractor shall be liable for claims for damages exclusively in accordance with the statutory provisions of the Austrian Civil Code (ABGB). The Contractor shall be liable for all personal injury, property damage and financial loss caused by it or its agents or vicarious agents to the Client, the Principal or third parties (including consequential damage caused by defects). In the event of culpable and unlawful behaviour on the part of the Contractor, the Client may also demand compensation for the interest in performance in addition to the warranty, even in the event of slight negligence. The reversal of the burden of proof pursuant to Section 1298 ABGB shall apply to all claims for damages and warranty claims. If the service is defective, the Client shall have the right to withhold the entire outstanding remuneration pursuant to Section 1170 ABGB (in conjunction with Section 1052 ABGB) until the defect has been fully remedied. The Contractor is not authorised to replace the retention with a means of security.</p

12.2 Defects in the Contractor’s work of any kind and of any extent that occur within the warranty period, as well as damage caused by these defects (consequential damage), shall be properly and professionally improved (remedied) by the Contractor within a reasonable period of time and without entitlement to remuneration following the Client’s request for improvement. If the defects are not properly and professionally remedied by the Contractor within a reasonable period of time, the Client shall be entitled to have these defects and damages remedied by Ditte at the Contractor’s expense and risk without further notice, without having to obtain several offers and without having to proceed according to the best price bid. The warranty period shall recommence on the date of successful completion of this defect rectification work. If the Contractor is responsible for the defect, the Client may also claim damages in accordance with the statutory provisions of the Austrian Civil Code (ABGB), including loss of profit, even in the event of slight negligence. Any deviating provisions of ÖNORM B2110 on damages/liability to the detriment of the Client shall not apply in this case.</p

12.3 The warranty and complaint period for all deliveries and services of the Contractor is generally a standardised 5.5 (five and a half) years and also begins for partial services with the acceptance of the work by the Client.

12.4 If improvements are carried out within the warranty period, the warranty period for this service shall commence anew.

12.5 Any retention of title shall not be asserted by the Contractor.

13. deadlines, penalties

13.1 The Contractor shall, in consultation with the Client, specify the exact work sequence and the provision of the individual services with details of the individual deadlines in a schedule (bar or network plan) to be drawn up. The schedule shall become part of the contract.</p

13.2 The Contractor shall be obliged to coordinate the provision of services with the Client in good time. The Client shall be entitled to intervene in the entire process in a coordinating capacity.</p

13.3 Bad weather downtimes shall not be recognised as reasons for an extension of the construction period. Work interruptions due to closed company holidays and the like on the part of the Contractor shall under no circumstances be deemed to delay the deadline. Even within the individually agreed execution dates, the Contractor shall be obliged to organise the progress of work in such a way that no hindrance or delay of other professional services occurs. If the Contractor breaches this obligation, it shall forfeit the contractual penalty specified for delays in accordance with Section 13.6 for each calendar day of a resulting hindrance or delay to another professional service.

13.4 The Client shall not be responsible for damages, other expenses and additional costs incurred by the Contractor due to the actions of other contractors of the Client or due to delays in the execution of the construction work by other contractors of the Client.

13.5 If the Contractor is in default with its (partial) deliveries or (partial) services, it shall compensate the Client for all resulting damages – including loss of profit – and shall fully indemnify and hold the Client harmless. In this case, the Client may carry out these deliveries and/or services itself or have them carried out by third parties at the expense and risk of the Contractor without having to set a grace period and therefore losing any rights. The same shall apply if, in the reasonable opinion of the Customer, the Contractor is not in a position to meet the agreed deadlines. The acceptance of delayed deliveries or services shall not exclude claims for compensation by the Customer. In the event of a delay on the part of the Contractor, the Client shall in any case not be obliged to set additional deadlines.

13.6 If the Contractor exceeds the agreed (completion/delivery) deadlines, a contractual penalty in the amount of 1 percent of the Contractor’s gross order amount per calendar day, but in no case more than 10 percent of the gross order amount, shall be agreed in favour of the Client, whereby even officially recognised full days of bad weather or company holidays etc. shall not postpone an agreed completion date. The Contractor also expressly waives the setting of additional deadlines and a judicial reduction of the contractual penalty. However, the agreement of this contractual penalty does not exclude the assertion of claims for damages beyond this. If a penalised (completion/delivery) deadline is postponed, the contractual penalty shall apply to this new deadline without this having to be expressly pointed out. In the event that the Principal withdraws the order from the Contractor due to the Contractor’s delay in performance or withdraws from the contract (in particular in accordance with Clause 14) and must arrange for substitute performance, the contractual penalty agreed in Clause 13.6 shall continue to apply, whereby the number of calendar days from the completion date agreed with the Contractor up to the day on which completion actually takes place within the scope of the substitute performance shall be used to calculate the contractual penalty.</p

14. cancellation

14.1 In addition to the reasons specified in ÖNORM B 2110, the Client shall be entitled to withdraw from the contract if:

• the Contractor does not commence the services on the agreed date without the consent of the Client or its representative or interrupts them during performance and does not commence or continue them within one week despite a written request;
• the Contractor exceeds the agreed performance dates by more than 14 days;
• the Contractor violates the recognised rules of technology and/or official regulations, thereby jeopardising the faultless production of the services and deliveries;
• the Client’s contract with the Principal is cancelled for whatever reason. In this case, the Contractor shall be remunerated for the services rendered up to the time of the cancellation of the contract; any further claims (e.g. claims for damages, loss of profit, etc.) of the Contractor shall not exist (cf. clause 14.4.);
• force majeure forces or requires the partial or complete termination of the legal transaction for which the Client has ordered this service;
• insolvency proceedings are opened against the Contractor’s assets or if the court refuses to open bankruptcy proceedings due to the Contractor’s lack of sufficient assets;
• the client or customer of the Client becomes insolvent. In this case, the Client shall satisfy the services of the Contractor on a pro rata basis to the extent that the Client itself has received payments by then or is satisfied by collateral. In addition, the Client may assign to the Contractor an amount corresponding to the Contractor’s default from its claim to which it is entitled against the Customer.

14.2 The right of cancellation pursuant to ÖNORM B 2110 shall only be available to the Client without any time limit.

14.3 Instead of cancelling the contract in its entirety, the client may also cancel only with regard to individual closed system groups (or partial trades, such as heating, ventilation and sanitation) and, if necessary, have these carried out by other companies.

14.4 If the Client cancels the contract or the work is stopped or interrupted by the Client for good cause, the Contractor shall not be entitled to compensation for work not performed or loss of profit; the agreed prices for the work performed shall not be affected.

14.5 If the circumstances that led to the cancellation of the contract (rescission) are within the sphere of the Contractor, the Contractor shall be obliged to reimburse the Client for the additional costs incurred or to advance them appropriately and, at the request of the Client, to leave the construction site equipment on the construction site for the completion of the deliveries and services without further remuneration. In addition, the retained cover retention shall lapse definitively.</p

15. subcontractors

15.1 The use of subcontractors requires the written authorisation of the Client. These must be named in writing when the offer is submitted, but at the latest in good time before the order is placed, so that a review by the client is possible. A contractual relationship between them and the Principal shall not be established by the authorisation. The Client shall also be entitled to reject named subcontractors without giving reasons.</p

15.2 If subcontractors are employed without the Client’s consent, the Contractor undertakes to pay a contractual penalty of 10 per cent of the gross final invoice amount, which is not subject to judicial mitigation. Proof of damage by the Client is not required for this. The Contractor expressly waives the right to judicial mitigation.</p

16. execution of the work on the construction site

16.1 The Contractor is obliged to prepare a daily construction report. The report shall include the date, prevailing weather conditions and temperature (several times during working hours if necessary), the status of the Contractor’s labour force, all special incidents (in particular official measures), findings, delivery of items provided, plans received, etc. The daily construction report shall also include a daily report on the Contractor’s performance. The daily construction report shall be submitted weekly to the Client or its representative for countersignature. By countersigning, the Client or its representative confirms that it has initially only seen the daily construction report. If express acknowledgement or authorisation of services, actions or omissions by the Contractor is required under these GTC, this cannot be replaced by an entry in the daily construction report.

16.2 Notifications, instructions, requests, etc. of the Client in the daily construction report shall in any case have the effect of a written notification directly to the Contractor and shall be deemed to have been acknowledged by the Contractor on the date of entry.

16.3 Before and during the execution of services, the Contractor shall carry out continuous tests to determine whether the building materials used and the works produced from them comply with the provisions of the standards applicable in accordance with point 1 in conjunction with point 12.1, any regulations of the producer, official regulations and the special conditions of this contract. In particular, the Contractor shall be obliged to carry out inspections required by the authorities, such as concrete tests, sewer inspections, smoke trap inspections, iron inspections, foundation inspections, etc. All costs incurred for the inspection and the costs of remedying any defects shall be borne by the Contractor itself.

16.4 In the event that the Contractor deploys foreign-language labour on the construction site, the Contractor shall be obliged to deploy German-speaking specialist engineers or skilled workers as contact persons for the Client or its representative until completion of the construction site.

16.5 If the Contractor intends to use materials other than those specified in the service and equipment description because the delivery of the contractually stipulated product or material is not possible (e.g. due to product discontinuation), the Contractor must obtain the written consent of the Client in good time before carrying out the corresponding services – otherwise the Client may demand the free replacement with a product or material of its choice.

16.6 The Contractor and its fulfilment companies are prohibited from burning waste or maintaining open fires in the construction site area and on the adjacent construction sites. If the Contractor is engaged in welding or flaming work on or in the building, it shall be obliged, without separate remuneration, to take all necessary fire protection and extinguishing precautions for the duration of this work. Furthermore, suitable measures must be taken to prevent any flying sparks. The Contractor must always ensure the supply and maintenance of fire protection measures (e.g. portable fire extinguishers, etc.).</p

16.7 The affixing of company advertising boards in places other than those intended for the Contractor by the Client is not permitted.

16.8 Construction site access and exit must always take place via the road designated for this purpose. Suitable cleaning measures must be installed and maintained at the Contractor’s expense so that the public road areas are not soiled.</p

16.9 Unacceptable levels of dust and noise must also be avoided; particular attention must be paid to the rights of neighbours. Only up-to-date construction equipment (of the latest design with appropriate sound insulation) is to be used.</p

17. relationship between the contractors

17.1 The Contractor shall be obliged to permit the use of its facilities on the construction site by other contractors to a reasonable extent and insofar as this is necessary or expedient. Any operating costs for this and other costs arising from the use shall be agreed and settled directly with these companies without the involvement of the Client or its representatives. The Client and its representatives shall assume no liability whatsoever in the event of any disputes arising from differences of opinion regarding the amount of costs or unpaid claims.</p

18. protective measures against damage

18.1 Protective measures for objects owned by the Contractor on the construction site or at the place of fulfilment of any kind against weather damage, fire and theft of installed and non-installed objects of the Contractor, including outside working hours, as well as the removal of such damage are the responsibility of the Contractor and are the sole responsibility of the Contractor.

19. acceptance

19.1 The Contractor shall notify the Client in good time of the acceptance of the completed overall performance and shall formally issue a written certificate from the Client.

19.2 At the time of the Contractor’s request to the Client to accept the service, all contractual services must have been rendered, previously known defects must have been rectified, the entire object documentation including the operating instructions, maintenance contracts, maintenance proposals, all official acceptance certificates and test certificates, as well as a complete list of the installed movable items, stating the make and brands (product designations), the domestic manufacturer or the domestic importer in accordance with the Product Liability Act, must be available. Agreed goods or functional tests or trial operations must have already been carried out before this date. This agreement also expressly applies to technical building systems.</p

19.3 Formal acceptance shall not be replaced by prior partial acceptance or the use or commissioning of the building; these shall also not be deemed a waiver of any fulfilment, warranty and compensation claims.

19.4 Fulfilment in partial services is excluded without the express prior written consent of the client.

19.5 Documentation of the materials used (certificate of conformity) shall be submitted to the Client in triplicate with the final acceptance.

19.6 A final determination of freedom from defects before expiry of the warranty period shall be deemed agreed. The Contractor shall apply in writing to the Principal for a final determination no later than 6 weeks before expiry of the warranty period. Otherwise, the Principal reserves the right to call the bank guarantee/letter of indemnity before expiry of the warranty period, unless it is extended accordingly in good time.

20. written form

20.1 The contracting parties are obliged to notify the other contracting party immediately in writing of any change of address or company name. Written declarations can only be effectively addressed to the address last notified by the other party to the contract.</p

20.2 Declarations by the contracting parties must be made in writing to be effective. Oral declarations or silence in response to notifications of any kind whatsoever by the Client, in particular also in response to the notifications and communications by the Contractor provided for in the ÖNORMEN, shall in no case be deemed to constitute consent or acknowledgement.

20.3 All amendments or additions to the contract must be made in writing to be effective.

20.4 It is hereby stipulated that declarations made by the contracting parties by means of electronic transmission by e-mail or fax shall be deemed equivalent to the written form (see point 20.2.). However, this applies exclusively to declarations by the contracting parties and does not apply to amendments or additions to the contract.</p

21. prohibition of assignment

21.1 The assignment of claims of the Contractor arising from this contract to third parties is excluded on the basis of corresponding negotiations.

22. other provisions

22.1 Execution documents of the Contractor shall also be submitted to the Client for inspection upon justified request if a business secret is disclosed as a result. These shall be treated confidentially by the Client.</p

22.2 If required, the Contractor shall submit a clearance certificate from the competent tax office, the employers’ liability insurance association and the competent health insurance fund within 2 weeks of being requested to do so by the Client.

22.3 The contracting parties expressly waive the right to contest the contract on the grounds of error, frustration of contract or reduction by more than half.

23. final provisions / regulations / employment of foreign nationals

23.1 The Contractor is not authorised to transfer rights and obligations under this contract in whole or in part to third parties

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23.2 Disputes between the Contractor and the Client shall be governed by Austrian law to the exclusion of the UN Convention on Contracts for the International Sale of Goods and to the exclusion of international conflict of law rules.

23.3 The exclusive place of jurisdiction for disputes arising from or in connection with a contract concluded between the Contractor and the Client shall be the court with subject-matter jurisdiction for A-6870 Reuthe. However, the Client shall also be entitled to sue the Contractor at the place of jurisdiction generally applicable to the Contractor or at the place of jurisdiction at which the Contractor has assets.</p

23.4 Should one or more of the above provisions be or become invalid, this shall not affect the validity or enforceability of the remaining provisions. In this case, the invalid provision shall be replaced by a provision that most closely resembles it in its economic content.</p

23.5 Regulations: All of the Client’s contractors shall be obliged to strictly comply with all existing collective agreement, labour and social law provisions as well as all employee protection provisions in the performance of their contract and to provide evidence thereof upon request. In addition, the provisions of the Labour Leasing Act (Arbeitskräfteüberlassungsgesetz) for the procurement of temporary workers as well as the provisions of tax law and all technical standards and regulations on the approval of machines, vehicles, materials and equipment must be fully and precisely complied with. The machinery used by the Contractor and its entire technical equipment must correspond to the state of the art and the Contractor is obliged to ensure that its employees who operate the corresponding machines have the appropriate training/instruction or specialist knowledge. Contractors who perform the order not in their home country but abroad must inform themselves in good time about which regulations must be observed in this foreign country. They shall be solely responsible for compliance with these regulations and shall fully indemnify and hold the Client harmless in the event of a claim (due to their violation by the Contractor). If the trade carried out by the Contractor is subject to the obligation to hold a licence, the Contractor shall provide evidence of the existence of such a licence upon request by the Client and at the same time name the managing director under trade law. In the event of a breach of these provisions, the Contractor shall be liable to the Client for all resulting disadvantages, including consequential damages, irrespective of any (administrative) criminal liability. In the event that claims are asserted against the Client, the Contractor shall indemnify and hold the Client completely harmless.

23.6 Employment of foreign nationals: Without exception, the Contractor shall employ registered and insured employees on the construction site covered by the contract in compliance with the labour, wage and social security regulations applicable in Austria. In particular, the provisions of the Federal Act of 20 March 1975 regulating the employment of foreign nationals (Foreign Nationals Employment Act), Federal Law Gazette No. 218/1975, as amended, must be complied with. The Contractor hereby confirms that he has not committed any offence against the AusIBG in the past. The Contractor is obliged to submit the authorisations for the foreigners employed within one week – but in any case before the start of employment – and to submit other documents at the request of the Client, on the basis of which the Client can check the Contractor’s compliance with the AusIBG. The certificate from the Federal Ministry of Labour, Social Affairs, Health and Consumer Protection stating that the Contractor is not in material breach of the AusIBG must be provided by the Contractor at the latest when the contract is awarded. This obligation of the contractor is a condition precedent for the realisation of the contract. This certificate must not be older than three months. After expiry of this three-month period of validity, the Contractor must send the Client a new, valid certificate from the aforementioned Federal Ministry without being requested to do so. The Client may request the submission of an original or a copy confirmed by the aforementioned Federal Ministry. If there are concrete indications of suspicion that the Contractor is not complying with these provisions, the Client shall be entitled to withhold payments due to the Contractor until the Contractor has provided proof of compliance with the provisions of the AusIBG. The Contractor shall be liable to the Client for all disadvantages arising from the Contractor’s failure to comply with these provisions and shall fully indemnify and hold the Client harmless in this respect. All these obligations shall also apply with regard to the employees of accepted subcontractors, whereby the Contractor shall be directly liable to the Client for compliance with these provisions by its subcontractors.

23.7 Liability for employee claims and social security contributions: Pursuant to §§ 67a ASVG, the Contractor undertakes to arrange for its company to be entered in the complete list of companies exempt from liability (HFU complete list) of health insurance providers at the WrGKK service centre. If the Contractor is not included in this list at the time of payment of the (partial) wage, the Client shall retain 25 percent (§§ 67a ff ASVG) of the (partial) wage to be paid as a liability amount for transfer to the WrGKK service centre.

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23.8 Right to information: The Client shall be entitled to visit and inspect all workplaces and rooms, technical facilities, planning documents of the Contractor (in particular also production halls) etc. at any time. The Contractor shall provide the information requested by the Client and comply with its instructions on the construction site. Employees of the Contractor who negatively disrupt co-operation on the construction site shall be removed from the construction site by the Contractor without delay. The Contractor must precisely document processes that are essential for its deliveries and services (see also clause 16); the same applies to findings that would no longer be possible at a later date.</p

By signing the corresponding work contract, the Contractor declares that it agrees to these General Terms and Conditions as an integral part of the work order(s) placed with it and thereby also confirms that it has read them carefully and understood them, so that there are no ambiguities or open points.