Terms and Conditions
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General Terms and Conditions of SinusPro GmbH


1. APPLICATION OF THE GENERAL TERMS AND CONDITIONS

a) The following general terms and conditions apply to all current and future contracts between the contractual partner and SinusPro GmbH (hereafter SinusPro).

b) The application of the contractual partner’s GTC is excluded from the outset. Deviations from these terms and in particular the contractual partner’s terms shall only apply if they are acknowledged and confirmed by SinusPro GmbH expressly and in writing

c) By sending his order, the contractual partner confirms having read and accepted the GTC.

2. OFFERS, ANCILLARY AGREEMENTS

a) SinusPro’s offers are, unless stated otherwise, non-binding, namely with regards to the stated data including the fee.

​b) The contractual partner’s order is considered accepted upon SinusPro’s order confirmation, whereby a contract is concluded. If an order confirmation by SinusPro contains changes versus the contract, they are considered approved by the contractual partner, unless he objects within five days.

​c) Agreements in general require the written form. There are no verbal ancillary agreements.

3. PLACING AN ORDER

a) Type and scope of the agreed service result from the contract, mandate and these general terms and conditions.

b) Changes and additions to the order require written confirmation by SinusPro in order to become part of the present contractual relationship.

c) SinusPro undertakes to properly execute the order placed with them in accordance with the generally recognised rules of technology and the principles of economic viability.

d) SinusPro may use other duly authorised persons for contractual performance and place orders with them on behalf and for the account of the contractual partner.

e) SinusPro may use other duly authorised persons as sub-planners for contractual performance and place orders with them on behalf and for the account of SinusPro.

4. WARRANTY AND COMPENSATION

a) Warranty claims are only possible after notices of defects which have to be made by recorded letter within 14 days from delivery of the service or partial service exclusively.

b) Claims for rescission and price reduction are excluded. Claims for improvement or provision of missing parts must be dealt with by SinusPro within an appropriate period which is in general a third of the period agreed for performance of the service. A claim for damages caused by delay cannot be asserted within this period.

c) SinusPro must provide their services with the care that may be expected from them as a specialist (§1299 ABGB).

d) SinusPro’s liability shall be limited to a liability, damages or warranty amount of max. € 50,000 (EURO fifty thousand). Thereby it shall be at SinusPro’s discretion to determine a different amount for the liability, damage or warranty amount individually per project, deviating from the arrangement in the estimates or offers submitted to the contractual partner.

e) The contractual partner expressly renounces the assertion of a damage amount exceeding the liability amount and shall hold SinusPro harmless in this regard.

f) SinusPro shall be obliged to pay compensation in the event of intent and blatant gross negligence only. The liability lapses after six months from the time the contractual partner’s knowledge of damage and damaging party.

g) SinusPro shall not be liable for indirect damages, loss of profit, loss of interest, omitted savings, consequential and financial loss, damages resulting from claims by third parties as well as the loss of data and programmes and their restoration. In the event a claim is made against SinusPro in this connection, SinusPro shall be held harmless by the contractual partner. Any liability by SinusPro for claims asserted by the alleged damaged party in Canada and the USA, shall be completely excluded.

h) If, in whatever case, a penalty was agreed, it shall be subject to judicial mitigation. The assertion of damages exceeding the penalty shall be excluded

5. LIABILITIES, LIMITATION OF LIABILITY

a) SinusPro does neither assume the development and accident risk, nor liability for the development and accident risk.

b) The contractual partner shall be liable for the transmitted data being correct and up-to-date (see point 6.c).

c) As SinusPro’s contractual services are limited to performance of partial solutions and the responsibility for release and serial production are carried out at the contractual partner’s sole responsibility, any liability by SinusPro for defects in the product or defects of the product versus the contractual partner and third parties shall be excluded.

d) Furthermore, any liability for product liability claims by third parties shall also be excluded. If any claims are made versus SinusPro by third parties, the contractual partner shall be obliged to hold SinusPro harmless.

e) Any liability by SinusPro for claims asserted by the alleged damaged party in Canada and the USA in connection with product liability claims shall be completely excluded.

6. WITHDRAWAL FROM THE CONTRACT

a) Withdrawal from the contract shall only be possible for an important reason.

b) Cancellations by the contractual partner shall only be possible with SinusPro’s written approval. If SinusPro agrees to a cancellation, it is entitled to charge a cancellation fee of 30% of the total project’s order value not yet settled, in addition to the services provided and costs incurred.

c) In the event of a delay of a service by SinusPro, the contractual partner shall be entitled to withdraw from the contract only after setting an appropriate period of grace; the period of grace must be set by means of a recorded letter.

d) In the event of a delay by the contractual partner of a partial performance or an agreed cooperation making the execution of the order by SinusPro impossible or significantly impeding 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, also in the event of an unjustified withdrawal by the contractual partner. Furthermore §1168 ABGB shall apply; in the event of a justified withdrawal by the contractual partner the services provided by SinusPro must be paid.

7. FEE, SCOPE OF PERFORMANCE

a) In the absence of other specifications, all fees are invoiced in EURO.

b) The specified fee amounts do not include sales tax (value added tax), this must be paid separately by the contractual partner.

c) If the contractual partner’s input data (must be) are changed significantly after placement of the order or project start and resulting in significant additional expenses for SinusPro, SinusPro is entitled to charge for these additional services.

d) Compensation with any counter-claims, for whatever reason, is inadmissible.

e) Unless otherwise agreed, the indicative calculation advice published by the professional association engineering office are part of the contract.


8. PLACE OF PERFORMANCE, TRANSMISSION, ACCEPTANCE

a) Place of performance with regards to all office services shall be the seat of SinusPro or if required, the seat of the contractual partner.

b) Every work package shall be considered correctly concluded, once the service (scope of order) was transmitted to the contractual partner by SinusPro per email in form of the calculation report.

c) Unless a complaint is made by the principal within five days of the submission of the delivery or service, the delivery or service shall be considered accepted.

9. NON-DISCLOSURE

a) SinusPro shall be obliged to keep all information provided by the contractual partner secret.

b) SinusPro shall also be obliged to keep their planning activity secret, if and as long as the contractual partner has a justified interest in keeping the information secret. After performance of the order, SinusPro shall be entitled to publish the contractual work in full or in part for advertising purposes, unless otherwise contractually agreed.

10. PROTECTION OF PLANS

a) SinusPro retains all rights and uses of the documents prepared by them (in particular plans, brochures, technical documents).

b) Every use (in particular processing, execution, reproduction, distribution, public presentation, provision) of the documents or parts thereof shall only be permitted with SinusPro’s express approval. Therefore all documents may only be used for the purpose expressly stipulated at placement of the order or via subsequent agreement.

c) SinusPro is entitled, the contractual partner obliged, to notify SinusPro of the name (company, business name) in the event of publications and announcements about the project.

d) In the event of a violation of these provisions for the protection of the documents, SinusPro is entitled to a penalty of twice the appropriate fee for the unauthorised use, whereby the company reserves the right to further claim for damages. This penalty is not subject to judicial mitigation. The burden of proof that the contractual partner has not used SinusPro’s documents shall be with the contractual partner.

11. CHOICE OF LAW, PLACE OF JURISDICTION

a) Austrian law to the exclusion of the UN sales convention shall apply exclusively to contracts between the contractual partner and SinusPro.

b) The jurisdiction of the competent court at the seat of SinusPro shall be agreed with regards to all disputes under this contract.

c) With regards to contractual partners from other countries Austria does not have a judicial enforcement agreement with, the jurisdiction of the Vienna International Court of Arbitration for settling disputes of all kinds, shall be agreed instead. The court of arbitration’s arbitrary awards are final and binding, the recourse to the courts shall be excluded.

12. OTHER PROVISIONS

a) Retention of title: The delivered goods and drawings/models remain SinusPro’s property until the payment of the purchase price has been made in full by the principal.

b) Protection and storage: The calculation data at SinusPro shall be deleted at the contractual partner’s express wish only, otherwise the kind and extent of storage is at SinusPro’s discretion.

c) The contractual partner agrees to SinusPro storing company and personal data in the course of handling the business relationship.

d) Severability clause: In the event a provision of this business relationship is or becomes fully or partially legally ineffective or unenforceable, the legal validity of all other terms of business shall remain unaffected. The contractual parties shall replace the legally ineffective or unenforceable provision with an effective and enforceable provision that is as close as possible to the legally ineffective or unenforceable provision in terms of contents and purpose.


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© SinusPro GmbH 2017-07-28