1. Preamble and area of application
1.1 These General Terms and Conditions (hereinafter referred to as “GTC” for short) apply to legal transactions entered into and accepted work orders, in particular research and purchase orders for services, appraisals, work as experts, and deliveries received by Montanuniversität Leoben as the Contractor. The respective version valid at the time of the conclusion of the contract shall be decisive.
1.2 These GTC shall also apply to all future contractual relationships with the Contractor, thus, also if no explicit reference is made to them again in additional or supplementary contracts.
1.3 These GTC are expressly acknowledged by the Client by the award of the contract. Each contract and each service shall be performed by the Contractor exclusively subject to the proviso that these GTC apply, especially given that they also underly the Contractor's calculation. If the Client, therefore, wants to exclude the applicability of these GTC and/or ensure the applicability of its GTC, it must specifically point out this fact and request the transmission of a tender with a new calculation taking this circumstance into due account. Furthermore, an explicit written and duly signed confirmation is required from the Contractor in this case. Otherwise, the applicability of the GTC shall be deemed agreed in all cases and the applicability of the Client’s GTC and other deviating terms of the Client shall be expressly excluded and without effect. This shall also apply if the Client refers to its GTC in its contract, order, confirmation, etc. In addition, we hereby object to any counter confirmation from the Client regarding its GTC with reference to its GTC. Even if the Contractor should not explicitly object to the GTC in addition in further subsequence, this cannot be interpreted as an acceptance of the same by the Contractor, as the drafting of a new calculation and a written confirmation from the Contractor is required in all cases for this purpose.
1.4 Deviations from these terms shall be effective only on written acceptance by the Contractor. Changes to the contract and these GTC furthermore require the written form, as does any deviation from this requirement of the written form.
1.5 If individual provisions of this contract should be invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid provision that comes closest to the intended objective.
1.6 The Contractor is entitled to implement the assigment in total or partially by expert employed staff or by commercial self-employed cooperation partners.
1.7 Exclusively Austrian law applies, to the exclusion of the reference standards of private international law and the UN Convention on Contracts for the International Sale of Goods.
1.8 All references to persons contained in the GTC shall be understood as gender-neutral references.
2. Contract, offer and side agreements
2.1 Kind and scope of the agreed performance are subject to the respective contract and to the GTC.
2.2 The Contractor undertakes solely to perform the services under the contract in the correct manner according to the rules of science and technology, whereas not to obtain a certain result or success.
2.3 The information contained in printed or electronically published information materials and similar, as well as other written or verbal statements shall be decisive or considered for this contractual relationship only if explicit reference is made to them in the order confirmation.
2.4 If an order confirmation from the Contractor contains changes compared to the order, these shall be deemed approved by the Client, unless it objects to them in writing without delay.
2.5 Changes and amendments to the contract require the written confirmation from the Contractor to become part of the contract relationship.
2.6 Agreements generally require the written form; the same applies to any waiver of the requirement of the written form.
2.7 In case that the agent is not authorized to implement the contractual performance according to the regulations of the University Act 2002 or other comparable laws, legal regulations, norms or statutes, this does not influence the legal effect of the relevant contractual relationship. The principal expressly waives a rescission of the legal transaction for one of the reasons mentioned above, he also waives all legal claims of any kind (especially claims for warranty and indemnity).
3. Client's duties to provide information and cooperate
3.1 The Client shall ensure that all documents required for the performance of the work order are provided to the Contractor on time, even without its separate request, and that it informs the Contractor of all processes and circumstances, which may be relevant for the performance of the purchase order. This also applies to documents, processes and circumstances that become known only in the course of the Contractor’s work.
3.2 The Client shall ensure that the legal relationships for services and preliminary services, which are made available to the Contractor by the Client, are arranged in such a manner with regard to these services and preliminary services that the Contractor is not confronted with an infringement of third-party intellectual property, ancillary copyrights, know-how and rights of adaptation. The Client shall hold the Contractor harmless with regard to such competition rights, intellectual property rights and similar aspects, and in particular it shall pay compensation to the Contractor for any potentially created disadvantages regardless of fault. Correspondingly to this, the Client undertakes to immediately inform the Contractor if claims are raised for an infringement of intellectual property rights or other ancillary copyrights.
3.3 The Client shall ensure that the organisational framework conditions for the performance of the contract permit undisrupted working, in a manner that is conducive to the rapid progress of the performance process wherever possible
3.4 The Client shall ensure compliance with and monitoring of all safety-related, legal and regulatory requirements, regulations and rules for the use or application of the contracted work results and hold the Contractor harmless in this respect.
4. Reporting
4.1 Unless otherwise stipulated, a report about the contract result must be submitted in writing.
4.2 The Contractor shall not be liable for statements and information provided not in writing.
5 Delivery period/Completion date
5.1 The client must cover the costs for authorization by third parties which may be necessary for the implementation of the contract. If these authorizations are not granted in time, the completion date is postponed accordingly.
5.2 If unanticipated circumstances or circumstances independent of the Parties’ intent, such as force majeure, occur, which obstruct or delay the adherence to the agreed delivery or completion date, these dates shall be postponed respectively by the time for which these circumstances persist.
5.3 The circumstances referred to in the above Clauses 5.1 and 5.2 shall be documented in writing without delay by the contractual partners and be transmitted, respectively, in writing to the other contractual partner.
6 Protection of the Client’s intellectual property
6.1 The Client is obligated to ensure that the reports, appraisals, organisational charts, drafts, drawings, calculations and similar that are to be prepared by the Contractor as part of the work order shall be used exclusively for the purposes of the contracting, which are notified or objectively evident to the Contractor.
6.2 Subject to the provision under Clause 6.3 and a contrary individual written agreement stating otherwise, all rights (including such, which are created only for reason of the performance of the contract), such as, in particular, intellectual property rights, ancillary copyrights, know-how and rights of adaptation shall be retained by the
Contractor. This shall apply, in particular, also to inventions developed by the Contractor and the related know-how.
6.3 In case of copyrighted works and services of the Contractor, e.g. reports, final papers, etc. the Client shall receive a license upon the complete payment of the owed fee to use the works in the definition of § 24 Article 1 Clause 1 UrhG [Copyright Act] absent any other explicit individual agreement stating otherwise. For the rest, the transfer of the Contractor’s contractual services to a third party for use shall require the Client’s written agreement. Any liability of the Contractor toward the third party shall not be established thereby.
6.4 If the Contractor makes a patentable invention in the course of the performance of the contract, it shall immediately inform the Client thereof and notify the Client if it files a patent application for the invention. Within four weeks from receipt of this information, the Client may thereupon request in writing that it be granted a non-exclusive license subject to payment if the Contractor files a patent application for the invention. The conditions and license fees for this shall be agreed separately and be documented in writing. In any case, both the Contractor as well as the Client are obligated not to take any actions prejudicial to novelty and to refrain from all actions that might harm patentability.
6.5 If the Contractor should decide not to file a patent application for the invention or not to uphold the patent registration, it shall also inform the Client of this. In that case, the Client shall be authorised to file for a patent registration or uphold the registration at its own cost within 6 months from receipt of this information.
6.6 Since no potential inventor’s fee is included in the calculation, the Contractor shall furthermore be entitled to a corresponding remuneration in line with the market, which shall be defined in a separate agreement if an economic exploitation of the invention results for the Client or if they can be used for profit internally by the Client.
6.7 The use of the Contractor’s services for processing or advertising purposes is prohibited except agreed otherwise in writing. Without prejudice to all further legal claims, a violation shall entitle the Contractor to terminate all work orders without notice, which have been received from the Client but have not been performed yet.
6.8 It is explicitly agreed that the Contractor can use all results for its own purposes in teaching and research in all cases and without limitation. This also implies the unlimited right to use and exploit results that are regarded as basic results. These include in particular, methods, algorithms and general knowledge.
7 Confidentiality, publication, data privacy
7.1 The Contractor is obligated to treat all business and company-internal matters of the Client as confidential and also keep other technical and financial information of the Client, which comes to its knowledge in connection with its work for the Client, in particular, business and trade secrets, confidential unless the Client releases the Contractor from this confidentiality obligation or if it is opposed by legal duties of disclosure. This obligation for confidential treatment shall apply for the duration of the
contractual performance and for another five years from the completion of the contract, unless otherwise agreed in writing.
7.2 This confidentiality obligation shall not apply if the relevant information has already been known to the Contractor from public sources prior to the contract or if it has been known to the Contractor without an obligation for confidentiality or if it has been disclosed or provided to the Contractor by a third party that is not subject to confidentiality obligations, or if it has been developed by the Contractor independently and without using the confidential information or, instead, involving a use of the confidential information in accordance with the foregoing rules of exception.
7.3 This confidentiality obligation shall also apply inversely to the Client, insofar as it receives business and company-internal information of the Contractor, and other financial or technical information of the Contractor.
7.4 The Contractor, part of whose basic tasks is reporting on its own research work and authoring related publications, shall be granted the express right to publish the object and results of its research activity and independently in the form of scientific publications. It shall do so, however, only if no confidentiality obligations are violated thereby and if no essential economic interests of the Client are opposed. The Contractor meanwhile undertakes to request the Client’s agreement to the intended publication. The agreement to the publication in the presented version shall be deemed given if the Client does not object within four weeks from presentation of the publication.
7.5 The Contractor is authorised to assign third parties (e.g. data processors) with the processing of personal data entrusted to it within the scope of the purpose of the contract. The Contractor assures pursuant to § 6 Data Protection Act to observe the protection of data secrecy. Any materials provided to the Contractor (data media, data, proof totals, analyses and programs) as well as all results from the performance of the work shall generally be returned to the Client, unless a written order from the Client is received to pass on the material or the results to third parties. The Contractor undertakes to take precautions that the Client can fulfil its duty to grant data subjects access to information stored of them pursuant to Art. 15 GDPR. The Client’s orders required for this purpose shall be passed on in writing to the Contractor. Insofar as no fee has been agreed for such work for the provision of access, it shall be invoiced to the Client by actual expense.
8 Rectification of defects and warranty
8.1 Claims for improvement or supplementation of missing parts shall be fulfilled by the Contractor within an appropriate period, which shall generally be one-third of the period agreed for the performance of the service. No claims for losses potentially due to late performance can be asserted during this period.
8.2 A reversal of the burden of proof, meaning the requirement for the Contractor to prove that the defect is not its fault, is excluded.
8.3 The warranty claim requires that the Client has reported the arisen defects in writing without delay.
9 Liability
9.1 The Contractor shall be liable for damages caused through intent and gross negligence only up to the agreed or the maximum insured sum of a public liability insurance, which may be liable for indemnity.
9.2 The Client shall provide proof in any case that the damage is due to the fault of the Contractor.
9.3 If commercially available computer programs are used for the service performance, no warranty is extended or liability is accepted by the Contractor for any consequential damages in the event of program faults or other software errors.
9.4 Liability for simple negligence, compensation for consequential damages and genuine financial losses is excluded. In addition, the Contractor does not accept any liability for the industrial or commercial exploitability of results. The Contractor shall not bear the development risk at any rate and it shall not be liable for damages arising for the Client or third parties in the context of the use of the results. The Contractor shall also not be liable if the rights of third parties are affected or infringed upon in the performance of the contract or application/use of the results.
10 Fee
10.1 If no contrary written agreements are made, the fee shall be invoiced in euros. Unless an explicit fee agreement is concluded, the relevant fee rates for civil engineers shall apply according to their fee schedule.
10.2 The indicated amounts are net amounts with regard to the liability for value added tax. No liability for the payment of the value added tax applies on principle. If, however, value added tax is owed, it shall be paid additionally upon submission of an invoice, which corresponds to the statutory requirements for invoices. The Client waives the defence of limitation.
10.3 Absent other agreements, one-half of the agreed (expected) total fee shall be due on the award of the contract and the further one-half upon the handover of the service. Optionally, the Contractor shall also be entitled to invoice in interim invoices according to the work progress and request on-account payments corresponding to the respective progress.
10.4 Any cash and travel expenses, etc. shall be refunded in addition by the Client against invoicing by the Contractor to the extent that such expenses were included in the tender and insofar as the Client’s agreement to the respective item has been obtained.
10.5 The Client is not entitled to withholding or set-off due to counterclaims.
10.6 Payments shall be made in the agreed currency, without deduction to a paying agent of the Contractor within 14 days. A payment will be deemed made on the day on which the Contractor can dispose over it. The Client shall bear the transport costs.
10.7 If wage costs should increase during a performance period of more than 2 years in the time between the conclusion of the contract and the service performance, or if other necessary costs for the calculation of relevant cost centres or performance of the service should rise, such as costs for materials, energy, transports, external work, financing, etc., the Contractor shall be entitled to accordingly increase the prices after the expiration of 2 years from the award of contract.
10.8 Extra work due to changes outside of the Contractor's sphere and new processing or reworking of individual components of the work order, in particular in consequence of requirements imposed by authorities, changes in relevant regulations and laws, and in consequence of change requests by the Client shall be paid separately according to the increased scope of service.
10.9 If the contract is not performed for reasons found on the Client’s side or based on a justified premature termination of the contractual relationship by the Contractor, the Contractor shall retain the claim to the payment of the entire agreed fee, less saved expenses.
10.10 In the event of non-payment of interim invoices, the Contractor shall be released from its duty to perform further services. However, this shall leave further claims resulting from non-payment unaffected.
10.11 If the work order is not performed due to circumstances the reasons of which constitute good cause on the part of the Contractor, the Contractor shall hold a claim only for the portion of the fee corresponding to the services performed up until such date.
10.12 If the work order is not performed due to circumstances the reasons of which do not constitute good cause on the part on part of the Contractor, Clause 10.9 shall apply only if its present services can be used by the Client in spite of the termination.
10.13 The Contractor is entitled to also transmit invoices to the Client in electronic format. The Client declares its explicit agreement to the electronic transmission of invoices by the Contractor.
11 Dunning and collection fees
In the event of a default on payment, 12% default interest p.a. shall apply as agreed. In addition, the Client shall refund the arisen dunning fees to the Contractor. Besides this, all costs and expenses that are incurred by the Contractor for the dunning or collection of due payments (especially the costs required for appropriate legal recourse and extraordinary lawyer fees according to their fee schedule, etc.) and all costs for in-court and other legal remedies sought shall be refunded by the Client.
12 Prohibition of assignment
Any claims against the Contractor must not be assigned without the Contractor's explicit written agreement.
13 Delay of acceptance and failed cooperation by the Client
13.1 If the Client is delayed with the acceptance of the service offered by the Contractor, this shall not alter the due date of the claim for remuneration. If the Client fails to fulfil its duty to provide information or another duty to cooperate incumbent on it, the Contractor shall be entitled, after setting an appropriate grace period of at least 7 days, to termination of the contract without notice. Its claims to fees are determined according to Clause 10.
13.2 Delay of acceptance and failed cooperation by the Client shall also establish the Contractor’s claim for the refund of additional expenses thereby incurred by it and for compensation of the loss caused, if the Contractor does not exercise its right to cancel.
14 Reservation of title
For delivery and/or services relating to objects that qualify for protection under property rights, a reservation of title shall be agreed for the Contractor up until the complete payment of the invoice totals besides any interest and costs.
15 Withdrawal from the contract
15.1 In the event of delay with a performance, the Client shall be entitled to exercise a right of withdrawal only after setting a grace period; the grace period shall be set by way of registered letter.
15.2 Unless otherwise stipulated, the requirement for the contract cancellation by the Client is a performance and/or delivery default due to gross negligence of the Contractor and also the unsuccessful expiration of a granted appropriate respite. The cancellation has to be asserted by registered mail.
15.3 Notwithstanding its other rights, the Contractor shall be entitled to withdraw from the contract
- if the performance of the work or the start or continuation of the work is impossible for reasons within the Client’s responsibility or if performance is further delayed in spite of setting an appropriate grace period;
- if concerns regarding the Client’s solvency have arisen and, on the Contractor's request, the Client fails to make prepayments or does not provide a suitable security still before the performance.
15.4 Withdrawal can also be declared for a still pending part of the delivery or service for the reasons stated above.
15.5 If insolvency proceedings are opened over the assets of one of the Parties or if the introduction of insolvency proceedings is rejected for a lack of sufficient assets, the other Party shall be entitled to withdraw from the contract without setting a grace period.
15.6 Without prejudice to the damage compensation claims of the Contractor, any already performed services or partial services shall be invoiced and paid in the event of a withdrawal. This also applies if the delivery or service has not been accepted yet by the Client and for preparatory actions having been taken by the Contractor. The Contractor shall have the right instead to demand the return of any items already delivered.
15.7 Other legal consequences of withdrawal are excluded.
15.8 The Contractor as well as the Client shall have a right of withdrawal if it becomes apparent in the course of the performance of the work order that the work order cannot be performed or fulfilled.
16 Place of jurisdiction and the place of performance
16.1 Absent any other written agreement, the place of performance is Leoben.
16.2 The substantively competent court in Leoben is agreed as the place of jurisdiction for all disputes arising in connection with the contractual relationship.