General Terms and Conditions for Services of Civil Engineers
1. validity and conclusion of the contract
1.1. The offers, order confirmations, conclusion of contracts and services of the Ziviltechniker:innenbüro (Ziviltechniker:innengesellschaft) as contractor:in shall be based exclusively on these AGB-ZT. Any terms and conditions of the client that conflict with or deviate from these GTC-CTC shall not apply unless their validity has been expressly agreed to in writing. These AGB-ZT shall also apply as a framework agreement for all further legal transactions between the Contractor:in and the Client:in’.
1.2 The Contractor’s fee offers shall be non-binding and subject to change. Verbal promises, collateral agreements and the like that deviate from these GTC-ZT or other written declarations of intent, in particular those made by employees, shall not be binding.
1.3. If the order confirmation contains changes to the order, these shall be deemed to have been approved by the Client unless the Client objects without delay.
2. contract bases
The following contractual bases apply in the following order:
2.1. Order and order confirmation or contract
(each including scope of services, fee offer and payment schedule);
supplementary to these GTC-ZT;
2.2. the planning bases;
2.3. the legal (building) regulations;
2.4. the state of the art or the state of the art of construction valid at the time of the conclusion of the contract;
2.5. the General Regulations for Planner:inside Contracts (AR as of 10. 04. 2014);
2.6. the relevant provisions of the Austrian Commercial Code (UGB) and the Austrian General Civil Code (ABGB).
3. scope of services/extra services
3.1. The scope of services results from the order and the order confirmation or the contract and these GTC-ZT.
3.2. If the Client commissions the Contractor to perform services that go beyond the subject matter of the order and order confirmation or contract, but are necessary to achieve the objective of the service, an agreement on the fee shall be reached before the service is performed.
3.3. If no agreement is reached between the Client and the Contractor, the Contractor shall in any case be obliged to provide the required service, insofar as this is necessary for the achievement of the performance target and is reasonable for the Contractor; this shall not prejudice the existence or non-existence of a claim for remuneration.
4. Advance performance or obligation to cooperate on the part of the customer
4.1. The Customer and the Contractor shall inform each other on an ongoing basis of any material incidents relating to the contractual relationship and its performance.
4.2. If the Contractor is responsible for local construction supervision, the Client shall refrain from issuing any direct instructions to the persons working on the construction site in order to avoid contradictory instructions. The Client shall participate in the final acceptance at the invitation of the Contractor.
4.3. The client must make the necessary decisions in good time so that the planned progress of the project is not delayed.
5. Performance deadlines and performance dates
5.1. The time periods specified in the fee offer are provided for the performance of the services.
5.2. The final dates for the provision of the individual partial services as well as the total contract period shall be specified in a schedule to be drawn up by mutual agreement.
6.1. The services of the Contractor shall be invoiced and remunerated in accordance with the fee offer. The fee refers to the specified scope of services in the planned implementation period according to the schedule.
6.2. Incidental expenses (travel expenses within the location of the office headquarters, working copies and internal copies of all kinds, copies for the parties involved in the planning services, required documents for the client:s internal use in sufficient numbers) shall be remunerated with a flat rate for incidental expenses according to the fee offer. In addition, the following additional costs will be charged according to actual expenditure:
– Cost of modeling or perspective renderings and computer simulations ordered by the client;
– official commission fees, stamp and legal fees, administrative charges, court costs, etc.;
– Copies and reproductions of documents and plans in excess of those covered by the incidental fee;
– Travel expenses outside the office location;
– Costs for the provision and operation of a project platform;
6.3. Additional services due to changes not caused by the Contractor, in particular as a result of official requirements, changes in relevant regulations and laws and as a result of changed wishes of the Client, shall be additionally remunerated in accordance with the increased scope of services.
7. Valorization/value retention
7.1. The fee is paid once a year in accordance with the fee schedule based on the agreement of 28. 01. 2002 between the federal provinces, the BMWA, the ÖBB, the HL-AG, the ÖSAG and the Alpenstraßen AG on the one hand and the Bundeskammer der Ziviltechniker:innen on the other hand. The adjustment is made annually on January 1.
7.2. In the event that the adjustment factor for the underlying is no longer published, it shall be replaced by the index that succeeds or most closely corresponds to it as the basis for future value hedging.
8. Cost determination
Cost estimates always correspond to the planning status available at the time of their submission and represent forecasts within the scope of the technical possibilities and the economic boundary conditions to be assumed at the time of preparation.
9. Terms of payment
9.1. The Contractor shall be entitled to submit partial invoices.
9.2. Partial invoices shall be due within 14 calendar days, the final invoice within 30 calendar days from the date of receipt of the invoice by the Client, whereby the Contractor shall be entitled to invoice the value added tax also for partial invoices.
9.3. In the event of late payment, the Client shall pay interest on arrears at the statutory rate.
9.4. Until payment of the final invoice, all documents (plans, calculations, etc.) drawn up by the Contractor shall remain his/her property.
9.5. In the event of default in payment, the Client shall reimburse any dunning charges incurred in the amount of € 15.00 plus postage per reminder issued, as well as an amount of € 5.00 per half-year for keeping records of the debt relationship in the dunning process. In addition, all costs and expenses arising from the reminder or the collection of due payments, in particular the necessary out-of-court lawyer’s fees etc. in accordance with the tariff, shall be reimbursed.
10. Delay, obstruction and interruption
10.1. If a delay, hindrance or interruption of the Contractor’s services of more than two months occurs for a reason for which the Contractor is not responsible, the Contractor shall be entitled to additionally invoice the proven additional expenditure.
10.2. If the period of time specified in item 10.1. If the interruption referred to above continues for more than six months, the status of the services performed up to that point shall be determined and settled by mutual agreement at the request of the Contractor.
10.3. In the event of delays, hindrances or interruptions in the provision of services that last uninterruptedly for more than six months, each contracting party shall be entitled to declare its withdrawal from the contract.
The Contractor shall be obligated within the scope of its statutory duty of confidentiality to maintain secrecy with respect to all circumstances and conditions that become known to it in the course of planning and construction and that have been entrusted to it by the Client, insofar as the interests of the Client would be impaired and the Client does not expressly release it from this obligation.
12. Safeguarding the interests and advising the client
12.1. Based on the fiduciary relationship existing between the Contractor and the Client, the Contractor shall be obliged to safeguard the interests of the Client within the scope of the duties assumed by the Contractor. In particular, he/she shall not be permitted to accept any benefits offered by third parties; any benefits otherwise obtained shall be returned in full to the Client.
12.2. Within the scope of the contractual obligations, the Contractor shall advise the Client on the circumstances relevant to the execution of the project with the due diligence incumbent upon it and shall use its expertise with a view to technically flawless and economical planning and execution.
12.3. The Contractor shall at all times provide the Client with information on issues related to the performance of the contractual obligations and shall take into account the Client’s wishes and instructions. If the Contractor has doubts regarding the expediency or suitability of the Client’s wishes and instructions while exercising due diligence, he/she shall demonstrably inform the Client thereof within the scope of the duties to warn and inform.
13. Power of attorney
13.1. The Contractor shall be authorized to represent the Client vis-à-vis the authorities and all third parties who have to provide services for the construction project, insofar as the Contractor is also commissioned with the local construction supervision within the scope of the services assigned. This power of representation includes all acts of representation necessary and customary for the implementation of the project in question, in particular the conduct of the necessary negotiations with the authorities and all professionals involved in the project, the monitoring of the activities of the contractors and other professionals, the issuing of orders for the rectification of defects and for substitute performance as well as the exercise of domiciliary rights on the construction site. If the Contractor has not been commissioned with the local construction supervision, the authorization to represent the Client shall only apply vis-à-vis authorities, but not vis-à-vis third parties who have to provide services for the construction project.
13.2. The power of representation does not include the awarding of contracts to the executing companies and the special experts required for the implementation of the project, nor does it include the legal acceptance of partial or final invoices of the executing contractors and the special experts.
13.3. The Contractor shall receive from the Client a written power of attorney document with the content specified in the above points in order to be able to prove the power of attorney relationship vis-à-vis the authorities, residents, participating professionals and other third parties.
14. Custody or surrender of the documents
14.1. The original plans and data shall remain with the Contractor, who shall properly retain them.
14.2. The Contractor shall, however, be obligated to provide the Client with paper copies of the documents upon request in return for reimbursement of costs. In the event that, on the basis of a separate agreement, documents are transmitted with the consent of the Contractor in digital form that cannot be changed or altered, the Contractor shall not be liable in any way whatsoever for errors or damage that occur to the computer system of the recipient of the digital data or to third parties. The Client shall indemnify and hold the Contractor harmless in this respect.
14.3. The Contractor’s duty of safekeeping shall generally end seven years after the final invoice has been issued to the Client, but the Contractor may release itself from its duty of safekeeping during this period by surrendering the documents to the Client.
15. Copyright, right of exploitation and right of use
15.1. The copyright and the resulting exploitation rights to the plans, sketches, models, etc. prepared by the Contractor shall remain with the Contractor even after payment of the remuneration. This includes in particular the right of execution or modification of the work or reconstruction by third parties.
15.2. The Client shall have the right to use the plans for the construction project in question within the framework of the execution of this work, if the Client has paid the fee claims for all commissioned partial services in full. This right only covers the one-time execution in accordance with the plan and the contract.
The use of the plans/documents for other projects or the passing on to third parties is only permitted with the written consent of the contractor.
15.3. The Client is obligated to allow the Contractor access to the work after the end of the contract for the purpose of providing information on the condition of the construction or for the purpose of taking photographs or other recordings, provided that this does not conflict with the legitimate interests of the Client.
15.4. The Contractor shall be entitled and the Client shall be obliged to state the name of the Contractor in publications and announcements about the Work. The Contractor shall have the right to prohibit the Client from publishing the name of the Contractor if the contractual relationship ends prematurely or the project is subsequently modified without the Contractor’s consent.
The Contractor shall have a valid professional liability insurance which shall be maintained at least for the entire duration of the contract. The Contractor shall, at the request of the Client, provide confirmation that the insurance is valid.
17. Warranty and compensation
17.1. The Contractor shall perform its services in accordance with the recognized rules of technology and the art of construction. The Contractor shall be liable to the Client for the correctness and completeness of its plans, calculations and other services.
17.2. The warranty period for all services provided by the Contractor shall be three years from completion of the contractually agreed overall performance.
17.3. The Contractor shall have the right to be instructed to remedy any design deficiencies that are identified.
17.4. The Contractor shall be liable to the Client within the scope of compensation for damages in the event of slight negligence for the positive damage, insofar as this is covered by the insurance pursuant to Item 16, but not for consequential damage and loss of profit. The client must prove the existence of slight or gross negligence.
17.5. The Client acknowledges that plans and other documents may only be used after any necessary official approval and express release by the Contractor.
18. Withdrawal from the contract
18.1. Withdrawal from the contract is only possible for good cause, which makes or would make the continuation of the contractual relationship unreasonable for one of the contractual partners. In particular, good cause shall be deemed to be:
18.1.1. for the client, if
– the Contractor continues to behave in a manner contrary to the terms of the contract – despite written reproach;
– the Contractor is in default with the performance of the service – despite having been granted a reasonable grace period;
– there are delays, impediments or interruptions in the provision of services that last continuously for more than six months.
18.1.2. for the contractor:in, if
– the client – despite written reproach and an appropriate grace period – behaves contrary to the contract or violates his/her duty to cooperate;
– the Client:in finally frustrates the proper performance of the service;
– there are delays, impediments or interruptions in the provision of services that last continuously for more than six months.
18.2. The withdrawal from the contract must be declared in writing.
18.3. If the contract is rescinded for a reason for which the Contractor is responsible, the Contractor shall only be entitled to payment for the services provided up to the date of rescission.
18.4. If the contract is rescinded for a reason for which the Client is responsible, the Contractor shall be entitled to claim damages in accordance with Section 1168 (1) of the Austrian Civil Code. 1 ABGB nevertheless the agreed remuneration less the saved expenses. The amount of the saved expenses is set at % of the services not yet rendered.
18.5. This shall not affect the claim for damages to which each party is entitled against the other party due to the other party’s fault in the premature termination of the contract.
19. Offsetting and retention
19.1. If the Client wishes to offset due fee claims of the Contractor against claims for damages, in particular due to damage to the object, the Client shall be obligated to specify the reason for and the amount of the damage incurred to such an extent that it is possible to allocate the damage to the individual parts of the object and to determine the extent of the damage. A set-off that does not meet these requirements shall be invalid.
19.2. Retention of the Contractor’s fee or part thereof shall only be permissible up to the amount of the anticipated remedial work.
19.3. In the event of default in payment by the Client, the Contractor shall be released from all further service and delivery obligations and shall be entitled to withhold any outstanding deliveries or services and to demand advance payments or securities and, if necessary, to withdraw from the contract after setting a reasonable grace period.
20. Mediation and jurisdiction
20.1. The Client and the Contractor shall, if possible, attempt to settle a dispute amicably by means of mediation.
20.2. It is agreed that the Contractor’s place of business shall be the exclusive place of jurisdiction.
21. statute of limitations
The Client’s claims for damages against the Contractor shall become statute-barred within one year of knowledge of the damage and the damaging party, but at the latest within five years of completion of the contractually agreed overall performance, unless the law provides for a shorter limitation period.
22. Final provisions
22.1. Should any provision of these GTC-ZT be or become legally invalid, this shall not affect the validity of the remaining provisions.
22.2. Amendments and supplements must be made in writing in order to be effective; this also applies in particular to any waiver of this formal requirement.
22.3. Austrian law shall apply to the exclusion of all conflict of law provisions.
22.4. The Client shall be obliged to notify any changes to his/her residential or business address as long as the legal transaction has not been completely fulfilled by both parties. If the notification is omitted, declarations shall be deemed to have been received even if they are sent to the address last notified.
22.5. The Client expressly agrees that the personal data relating to the Client may be processed, transferred or transmitted by the Contractor to the extent that this is necessary and expedient for the performance of the assigned tasks or results from legal or professional obligations.