General Terms and Conditions of SinusPro GmbH
1. APPLICABILITY OF THE GENERAL TERMS AND CONDITIONS
a) The following General Terms and Conditions shall apply to all present and future contracts between the contracting party and SinusPro GmbH (hereinafter: SinusPro).
b) The validity of the general terms and conditions of the contractual partner shall be excluded from the outset. Deviations from these terms and conditions and in particular also terms and conditions of the contractual partner shall only apply if they are expressly recognised and confirmed in writing by SinusPro GmbH.
c) By sending his order, the contractual partner confirms that he has read and accepted the GTC.
2. OFFERS, ANCILLARY AGREEMENTS
a) Unless otherwise stated, SinusPro's offers are subject to confirmation with regard to all data given, including the fee.
b) The order of the contracting party shall be deemed accepted with the SinusPro order confirmation, whereby a contract shall be concluded. If an order confirmation of SinusPro contains changes to the order, these shall be deemed to have been approved by the contracting party unless the latter objects in writing within five days.
c) Agreements must always be made in writing. Verbal subsidiary agreements shall not be valid.
3. PLACING AN ORDER
a) The type and scope of the agreed service result from the contract, power of attorney and these General Terms and Conditions.
b) Changes and additions to the order require written confirmation by SinusPro in order to become the subject of the present contractual relationship.
c) SinusPro undertakes to duly execute the order placed with it in accordance with the generally recognised rules of technology and the principles of economic efficiency.
d) SinusPro may call in other appropriately authorised persons for the fulfilment of the contract and place orders with them in the name and for the account of the contracting party.
e) SinusPro may also engage other appropriately authorised persons as sub-planners for the fulfilment of the contract and place orders with them in the name and for the account of SinusPro.
4. WARRANTY AND COMPENSATION
a) Warranty claims can only be made after notification of defects, which must be made exclusively by registered letter within 14 days of handover of the service or partial service.
b) Claims for redhibitory action and price reduction are excluded. Claims for improvement or supplementation of what is missing shall be fulfilled by SinusPro within a reasonable period, which shall generally be one third of the period agreed for the performance of the service. A claim for damage caused by delay cannot be asserted within this period.
c) SinusPro shall render its services with the care to be expected of it as a professional (§1299 ABGB).
d) SinusPro shall be liable for a maximum liability, compensation or warranty sum of € 50,000 (EURO fifty thousand). SinusPro shall be at liberty, in deviation from this regulation, to set the liability, compensation or warranty sum in cost estimates or offers submitted to the contracting party individually to a different sum per project.
e) The contracting party expressly waives the assertion of a claim for damages exceeding the liability amount and indemnifies and holds SinusPro harmless in this respect.
f) SinusPro shall only be obliged to pay damages in the case of intent and gross negligence. Liability shall lapse six months after the contractual partner has become aware of the damage and the damaging party.
g) SinusPro shall not be liable for indirect damages, loss of profit, loss of interest, missed savings, consequential and pecuniary damages, damages from claims of third parties as well as for the loss of data and programs and their restoration. Should claims be made against SinusPro by third parties in this context, SinusPro shall be indemnified and held harmless by the contracting party. Any liability of SinusPro for claims asserted by allegedly injured parties from the countries Canada and USA is completely excluded.
h) If, in whatever case, a penalty has been agreed, it shall be subject to the judicial right of moderation. The assertion of claims for damages in excess of the penalty is excluded.
5. LIABILITIES, LIMITATIONS OF LIABILITY
a) SinusPro assumes neither the risk of development and accidents nor any liability for the risk of development and accidents.
b) The contractual partner is liable for the correctness and up-to-dateness of the transmitted data (see point 6.c).
c) Since the contractual services of SinusPro are limited to partial development services and the release responsibility as well as the series production are carried out under the sole responsibility of the contracting party, any liability of SinusPro for defects in the product or defects of the product towards the contracting party but also towards third parties is excluded.
d) Furthermore, liability for product liability claims of third parties is also excluded. Should third parties assert claims against SinusPro, the contracting party shall be obliged to indemnify and hold SinusPro harmless.
e) Any liability of SinusPro for claims asserted by allegedly injured parties from the countries of Canada and the USA in connection with product liability claims is also completely excluded.
6. WITHDRAWAL FROM THE CONTRACT
a) Withdrawal from the contract is only permissible for good cause.
b) Cancellations by the contracting party are only possible with the written consent of SinusPro. If SinusPro agrees to a cancellation, it shall have the right to charge a cancellation fee in the amount of 30% of the order value of the total project not yet invoiced, in addition to the services rendered and costs incurred.
c) In case of default of SinusPro with a service, a withdrawal of the contracting party shall only be possible after setting a reasonable grace period; the grace period shall be set by registered letter.
d) In case of default of the contracting party with regard to a partial performance or an agreed cooperation activity, which makes the execution of the order by SinusPro impossible or considerably impedes it, SinusPro shall be entitled to withdraw from the contract.
e) If SinusPro is entitled to withdraw from the contract, it shall retain the claim to the entire agreed fee, likewise in the case of unjustified withdrawal of the contractual partner. Furthermore, §1168 ABGB (Austrian Civil Code) shall apply; in the event of a justified withdrawal of the contractual partner, the services rendered by SinusPro shall be remunerated by the latter.
7. FEE, SCOPE OF PERFORMANCE
a) Unless otherwise stated, all fees are in EURO.
b) The stated fee amounts do not include value added tax (VAT), which is to be paid separately by the contractual partner.
c) Should input data of the contracting party be (have to be) significantly changed after the order has been placed or after the start of the project and should this result in considerable additional expenditure on the part of SinusPro, SinusPro shall be entitled to invoice for these additional services.
d) Compensation with any counterclaims, for whatever reason, is inadmissible.
e) Unless otherwise agreed, the non-binding calculation recommendations issued by the Professional Association of Engineering Consultants shall form part of the contract.
8. PLACE OF PERFORMANCE, TRANSMISSION, ACCEPTANCE
a) The place of performance for all office services shall be the registered office of SinusPro or, if required, that of the contractual partner.
b) Each work package shall be deemed to have been correctly completed when the service (scope of the order) has been handed over by SinusPro to the contracting party by email in the form of the calculation report.
c) If no complaint is made by the client within five days of the delivery or service being provided, the delivery or service shall be deemed to have been accepted.
a) SinusPro shall be obliged to keep all information provided by the contractual partner secret.
b) SinusPro shall also be obliged to maintain confidentiality of its planning activities if and as long as the contracting party has a justified interest in such confidentiality. After execution of the order SinusPro shall be entitled to publish the contractual work in whole or in part for advertising purposes, unless otherwise contractually agreed.
10. PROTECTION OF THE PLANS
a) SinusPro reserves all rights and uses to the documents created by it (in particular plans, brochures, technical documents).
b) Any use (in particular processing, execution, duplication, distribution, public presentation, making available) of the documents or parts thereof shall only be permitted with the express consent of SinusPro. All documents may therefore only be used for the purposes expressly specified when the order is placed or by a subsequent agreement.
c) SinusPro shall be entitled, and the contracting party shall be obliged, to state the name (company, business name) of SinusPro in publications and announcements about the project.
d) In the event of a breach of these provisions for the protection of the documents, SinusPro shall be entitled to a penalty in the amount of twice the reasonable remuneration for the unauthorised use, whereby the right to assert a claim for damages in excess of this shall remain reserved. This penalty shall not be subject to the judicial right of moderation. The burden of proof that the contracting party has not used the documents of SinusPro shall lie with the contracting party.
11. CHOICE OF LAW, PLACE OF JURISDICTION
a) Contracts between the contracting party and SinusPro shall be governed exclusively by Austrian law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
b) For all disputes arising from this contract, the jurisdiction of the court with subject-matter jurisdiction at the registered office of SinusPro is agreed.
c) For contractual partners from countries with which Austria does not have a legal assistance agreement, the jurisdiction of the Vienna International Arbitration Court for dispute settlements of all kinds is agreed instead. The arbitral awards of the arbitral tribunal are finally binding, ordinary legal recourse is excluded.
12. OTHER PROVISIONS
a) Retention of title: The delivered results and drawings/models shall remain the property of SinusPro until the client has paid the full purchase price.
b) Backup and storage: Only at the express request of the contracting party shall the calculation data be deleted at SinusPro, otherwise the type and extent of storage shall be at the discretion of SinusPro.
c) The contracting party agrees that SinusPro may store company and personal data within the scope of the processing of the business relationship.
d) Severability clause: Should any provision of this business relationship be or become legally invalid or unenforceable in whole or in part, this shall not affect the legal validity of all other business provisions. The contracting parties shall replace the legally invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the legally invalid or unenforceable provision in terms of content and purpose.
© SinusPro GmbH 2017-07-28