General Terms of Business (GTB) of ZT Ortner
1.1 These general terms of business apply to all contracts concluded by ZT Ortner based in Austria. Furthermore these general terms of business apply to all contracts concluded by owners of a personal licence under the Austrian Civilian Technicians Act (Ziviltechnikergesetz 1993), who are partners of or employed by a company of ZT Ortner based in Austria. All natural and legal persons to whom these general terms of business apply, will in the following be referred to as ZT Ortner.
1.2 ZT Ortner concludes contracts with the client exclusively on the basis of the conditions defined herein, unless otherwise agreed upon in the offer.
1.3 These general terms of business also apply in the absence of other written agreements without separate agreement for further services provided by ZT Ortner (follow-up projects)
2.1 Unless otherwise defined the offers made by ZT Ortner are without obligation with regard to any data given incl. fees.
2.2 Unless otherwise defined in the offer ZT Ortner is bound to binding offers for a period of 30 days.
2.3 Verbal and supplementary agreements deviating from these general terms of business or other written declarations of intent are not binding for ZT Ortner. The content of advertising material used by ZT Ortner (brochures, homepage of ZT Ortner etc.) does not form part of the contract, unless explicitly referred to in the contract.
3 Placing of Orders
3.1 Type and scope of the service agreed upon derive from the contract and these terms of business, in this sequence.
3.2 Without prior written offer by ZT Ortner orders are only considered accepted with the actual rendering of services or upon written confirmation of order by ZT Ortner.
3.3 ZT Ortner has the right to assign authorised subcontractors for the fulfilment of the contract.
4.1 The fee to which ZT Ortner is entitled is defined in the written offer or in the contract concluded with the client. In case no written offer has been placed the fee defined in the written confirmation of order applies.
4.2 Unless otherwise agreed upon, subsidiary and supplementary remuneration of services is made on the basis of the valid Austrian fee structure applicable to the respective area of expertise.
4.3 Additional services caused by changes outside the compass of ZT Ortner, and which require the re-provision or alteration, even of individual already rendered services, in particular as a consequence of conditions imposed by authorities, modifications of relevant regulations and laws or as a consequence of changes of the client’s wishes have to be paid additionally according to the extended scope of services.
4.4 In case there is a change of fees in the fee structure and scope of services applicable between the submission of tender and the invoicing, ZT Ortner charges its fees for services rendered from the day of entry into force according to the new fee structure.
4.5 Taxes and duties are added separately to all fees and have to be paid by the client.
4.6 The client is charged transportation expenses, per diems and accommodation separately according to the valid rates.
5.1 Upon delivery to ZT Ortner (receipt) of the notice of acceptance of the client the deadlines for services are effective. In case technical or organisational details remain to be clarified the deadlines are effective at the earliest from the day ZT Ortner confirmed the co-ordination.
5.2 The occurrence of events, which completely or partially delay the provision of services by ZT Ortner as defined in the contract, extends the deadlines by the periods covered by the events referred to. Such events include in particular: force majeure, inadequate provision of services by third parties, disruption of operation, collective actions, working restrictions, legal, judicial or official regulations, bans or compulsory measures, in as much as they are not caused by gross negligence by ZT Ortner. The onus to prove the existence of gross negligence lies with the client. The deadlines for services are, however, not extended by circumstances within the compass of the client, and/or by circumstances, which cause a default in acceptance of the client according to § 1419 ABGB (Austrian Civil Code).
5.3 ZT Ortner is entitled to part deliveries and partial performances. The client contracts explicitly to accept any part deliveries and partial performances by ZT Ortner.
6 Default in Acceptance, Withdrawal, Impossibility, Securing
6.1 If the client is in default of acceptance, ZT Ortner is entitled to withdraw from the contract after a period of grace of 14 days granted in written form.
6.2 ZT Ortner is entitled to withdraw from the contract in case the fulfilment of the services according to the contract is made impossible or unreasonable for ZT Ortner. Apart from the general legal reasons ZT Ortner is also entitled to withdraw from the contract if bankruptcy proceedings are instituted against a client or in case of a dismissal of a petition in bankruptcy for want of cost-covering capital, in case of interruption of the services for more than three months on instruction of the client and in case of obstruction of services by the client. In case of withdrawal from the contract ZT Ortner is entitled to the total fees for the services rendered by ZT Ortner up to the date of withdrawal. ZT Ortner is entitled to the fees for services that have not been rendered until the day of withdrawal minus a lump sum of 30%.
6.3 In case the client withdraws from the contract or demands its cancellation -without being entitled to do so
– ZT Ortner may insist upon the fulfilment of the contract or accept its cancellation. The client is, however, obliged to pay the total fees for the services rendered by ZT Ortner up to the day of withdrawal. ZT Ortner is entitled to the fees for services that have not been rendered until the day of withdrawal minus a lump sum of 30%.
6.4 In case of default in payment by the client, ZT Ortner is entitled to withhold deliveries, services and payments to be effected for any legal reasons whatsoever, until all liabilities of the client due for any legal reasons whatsoever are secured or met.
6.5 In case of default in payment of partial invoices of more than 14 days ZT Ortner is entitled to suspend its services, and in case of a further delay of 14 days ZT Ortner is entitled to withdraw from the contract.
6.6 This puts on hold the deadlines for deliveries, services and maturities, the deadlines are extended accordingly.
7.1 Guarantee claims have to be lodged with a court within 12 months after completion of rendering of services or handing over of plans, after this period, claims are null and void.
7.2 Claims for redhibition and reduction of price are excluded. Claims for improvement or subsequent delivery of missing items have to be fulfilled by ZT Ortner within an appropriate period of time, corresponding in general to one third of the period agreed upon for the rendering of the respective services. Claims for damages due to delayed delivery cannot be lodged within this period of time.
7.3 Any guarantee is excluded if the defect occurred as a consequence of false or incomplete instruction by the client, and if ZT Ortner has not culpably violated its duty to warn. ZT Ortner may thus rely on the fact that the client will pass on any information required for an adequate rendering of services by ZT Ortner.
8 Compensation for Damages
8.1 The client has no right to compensation of damages, for which legal reasons whatsoever, if ZT Ortner or any person for whose acts or failures to act ZT Ortner is liable, may be charged with only slight negligence. The existence of gross negligence and deliberate acts has to be proven by the injured party.
8.2 The term of limitation for damages claims, for which legal reasons whatsoever, is 2 years.
9 Insurance – Limitation of Liability
9.1 Upon request of the client ZT Ortner provides information on the scope of existing liability insurance(s) of ZT Ortner (its owners of a personal licence under the Austrian Civilian Technicians Act), the details of the valid conditions and the existing insurance portfolio. All claims of the client, under any title whatsoever, are in their entirety limited to the limit of indemnity of the existing liability insurance(s). ZT Ortner is furthermore not liable for lost profit, indirect damages and consequential damages, including consequential harms caused by defects, and immaterial damages.
9.2 If the client or third parties demand an additional insurance coverage this insurance is charged separately. This insurance premium is charged even if it is not or only in part mentioned in the written offer, in the letter of confirmation or in the contract.
10.1 In case of justifiable claims – except for refund claims – the client is not entitled to retain the total gross fee, but only an adequate part thereof.
11 Retention of Title
11.1 In default of an explicit written consent by ZT Ortner the client has to refrain from any act of disposal concerning goods supplied/services delivered by ZT Ortner under reservation of proprietary rights, in particular their sale, alienation or pledging. The client has to safeguard the property rights of ZT Ortner by all necessary means and has to notify ZT Ortner by phone and in writing without delay in particular of securing, confiscation or distraint by the authorities or by court order.
11.2 Prior to a any further application or use of items or services under reservation of proprietary rights, also by third parties, the written consent (signed and stamped) of ZT Ortner has to be obtained.
12.1 Any works produced by ZT Ortner (plans, drawings, models, other documentation and papers etc.) are copyrighted. The client has no utilisation licence and no right of use. Only on the condition of a complete fulfilment of the contract the client acquires the right to use the work for the purpose defined in the contract.
12.2 Any works produced by ZT Ortner (plans, drawings, models, other documentation and papers etc.) are copyrighted. The client has no utilisation licence and no right of use. Only on the condition of a complete fulfilment of the contract the client acquires the right to use the work for the purpose defined in the contract.
13 Billing and Payment
13.1 The services are billed monthly ex post at the closing of the month.
13.2 Payment of partial invoices is due net within 14 days, payment of final invoices is due net within 30 days, upon receipt of the invoice.
13.3 Payments are considered cleared upon receipt of the credit at the accounting department of ZT Ortner (at least verifiable receipt of the amount on the account of ZT Ortner).
13.4 In case of default of payment default interest in the amount of 8% above the base rate, at least, however, 12% per annum has been agreed upon. The assertion of additional, higher interest deriving from the claim for damages is unaffected thereby.
13.5 ZT Ortner is entitled to refuse the acceptance of bills of exchange and cheques effected exclusively on account of payment.
13.6 In case of default in payment the client has to pay the costs for the appropriate legal proceedings. This also applies to the costs for an appropriate out-of-court prosecution and debt collection.
14 Cession, Set-off
14.1 The cession of claims of the client against ZT Ortner is excluded and this exclusion is also applicable to third parties.
14.2 The client is not entitled to the set-off of claims of the client, for which legal reasons whatsoever, against receivables of ZT Ortner.
15 Place of Performance, Applicable Law, Competent Court of Law
15.1 Place of performance of all services is the registered office of the assigned company of ZT Ortner. In the case of contracts concluded by owners of a personal licence under the Austrian Civilian Technicians Act the place of performance is the registered office of the partner or employee owning the personal licence under the Austrian Civilian Technicians Act.
15.2 Contract law for any disputes arising out of this contract or in connection with this contract is the Austrian law.
15.3 There is agreement that the court having the respective jurisdiction ratione materiae at the place of the registered office of ZT Ortner will have the exclusive jurisdiction ratione loci. In the case of disputes with natural persons holding a personal licence under the Austrian Civilian Technicians Act the place of the registered office of the employing company or the company this person is holding a share in is relevant.