General Terms and Conditions of Contract and Special Terms and Conditions of Contract

(AAB and BAB)
Version dated July 27, 2022

PDF download (german)

Application of the General and Special Terms and Conditions of Contract and other contractual components

The rights and obligations of the contractual relationship between the Client and the Contractor are set out in the following documents in the following order:

  • the letter of engagement;
  • if applicable, the service description of the client;
  • these general and special terms and conditions of the client, whereby in the event of contradictions between the provisions of the general part (Chapter A) and the special terms and conditions (Chapters B1 to B3) of the general and special terms and conditions, the special terms and conditions (Chapters B1 to B3) shall take precedence;
  • the offer of the contractors:inside, to which explicit reference is made in the letter of engagement;
  • the ÖNORM A 2060, edition dated 15.03.2013, available at austrian-standards.at.

General terms and conditions of the contractor shall not apply to the contractual relationship. These General and Special Terms and Conditions of Contract shall also apply without restriction to all service changes and additional services.

 

A. General Terms and Conditions of Contract

 
1.  Validity of the General Terms and Conditions of Contract

The General Terms and Conditions of Contract set out in this Chapter A shall apply without restriction to the contractual relationship existing between the Client and the Contractor.

 2.  Services of the contractors

The services owed by the contractors are set out in the contract or the contractor's offer.

Services not expressly mentioned in the contract, in the offer and in the other components of the contract shall nevertheless be the subject of the contract insofar as they are necessary and expedient for the contractual provision of the services and their functional suitability and for achieving the performance objective.

2.1.  Provision of services

The contractors shall carry out the work assigned to them with due care and diligence to the best of their knowledge and refrain from doing anything that could harm the interests of the client. They must comply with the statutory provisions, official orders and generally recognized rules of technology when performing the service.

The Contractor shall provide the operating and auxiliary materials required to fulfill the order itself. This shall not give rise to any claims by the Contractor against the Client.

2.2 Performance dates and performance deadlines

The services shall be rendered on the dates specified in the offer or within the execution periods specified in the offer. Minor additions commissioned by the client shall not affect the specified performance dates or performance deadlines.

The service must be started and carried out in good time, taking into account the necessary preparation time, so that the contractually agreed performance deadlines can be met. At the request of the client, the contractors shall provide evidence of the progress of performance.In the event of non-compliance with the performance deadlines, the client shall be entitled, after the unsuccessful expiry of a reasonable grace period set in writing, to have the service performed by another company of its choice at the contractor's expense.

2.3 Resources, personnel and subcontractors

Contractors shall provide the operating and auxiliary materials required to fulfill the order themselves. This shall not give rise to any claims of the Contractors against the Principal.

The contractors shall, insofar as they have named key personnel in the procedure for concluding this contract, have the content and organization of the project in question supervised by notified key personnel. The designated key personnel may be withdrawn or replaced upon request or only with the consent of the client.The contractors shall only deploy expert employees within the scope of contract execution. If employees deployed by the Contractors do not meet this requirement, the Contractors shall immediately replace these employees with employees who have the required expertise at the justified request of the Principal. The same shall apply if the Contractors themselves come to the realization that the deployed employees do not have the required expertise. The employees deployed shall not be subject to any right to issue instructions on the part of the client and shall not receive any instructions from the client's employees.The contractors shall only be entitled to subcontract parts of the contractual service to the extent that these subcontractors have been named in the contractors' offer. The Contractors may only use other subcontractors with the prior written consent of the Principal. The contractors shall impose on their subcontractors the obligation to comply with the regulations binding on them.At the request of the client, employees of the contractors or other personnel to be assigned to the contractors shall be removed from the provision of the contractual services.

2.4 Coordination with the client

All activities of the contractor within the scope of providing the service must be coordinated with the client. As soon as the contractor becomes aware of any circumstances that could question the contractual fulfillment of the order, they must immediately notify the client in writing of these circumstances and any measures they are considering. The contractors undertake to provide a written report and information about the progress of the service or other circumstances relevant to the fulfillment of the contract at any time upon request by the client or - if expressly requested by the client - orally. Information provided electronically, particularly by email or fax, also counts as written statements. Inquiries from the client must be answered within a maximum of three working days.

3. Changes to services

The Client shall be entitled to change the type and scope of the agreed services or the circumstances of service provision or to request additional services that are not included in the commissioned scope of services, provided they are reasonable for the Contractor.

If services are to be performed that were not included in the commissioned scope of services, the contractors must submit a supplementary offer to the client in good time before the start of the additional services, which must be demonstrably based on the price bases and the price basis of the concluded contract. In any case, the contractors must reach agreement with the client before commencing the execution of the additional services. If the client's consent cannot be obtained in good time due to imminent danger, agreement with the client must be reached immediately afterwards.

Changes or additional services do not generally constitute grounds for a change in the execution deadlines. If the extent of the changes to the services exceeds a de minimis limit of 10% or if the changes are significant, the execution deadlines may be adjusted in agreement with the contractor.

Should it become apparent during the execution of the order that individual parts of the service cannot be performed in whole or in part, the contractor shall not be entitled to additional remuneration or price increases. Invoicing and remuneration shall be based exclusively on the services actually provided.

Services that the contractor performs additionally or differently without an order or with an unauthorized deviation from the contract shall only be remunerated if the client subsequently expressly acknowledges such services.

4. Transfer of risk

The contractors bear the costs and risks of providing the contractual services at the place of performance.

5.  Compliance with labor and social law regulations

The contractors are obliged to ensure compliance with all labor and social law regulations applicable in Austria when providing services.

6. Remuneration for services

Unless otherwise expressly agreed between the Client and the Contractor, a lump-sum fee shall be deemed agreed. Ancillary services and other services - even if these are not listed separately in the offer or in the letter of engagement, but are necessary to provide the contractual service -, minor additions, clarifications or participation in meetings in connection with the assignment, which the client should request, shall be provided as part of the service fee. Minor additions are understood to be those that do not account for more than 10% of the lump sum price in total.

If compensation has been agreed based on unit prices (e.g. billing based on hours worked), the following applies:

  • If the contracting parties have agreed a maximum service fee (maximum limit), ancillary services and other services - even if these are not listed separately in the offer or in the letter of engagement but are necessary to achieve the contractual service -, minor additions, clarifications or participation in meetings in connection with the contract in question, which the client should request, shall be provided within the scope of this service fee. Minor additions are understood to be those that do not cause more than 10% of the maximum price in total.

    When 75% of the agreed maximum service fee is reached, the contractors are obliged to demonstrably inform the client and provide an estimate of how high the remaining effort is (duty to warn).
     
  • If the contracting parties have not agreed a maximum limit, but the contractor's offer contains a cost estimate, the contractors are nevertheless obliged to demonstrably inform the client when 75% of the estimated expenditure in the offer is reached and to provide an assessment of how high the remaining expenditure is (duty to warn).

Unless expressly agreed otherwise between the Client and the Contractor, the cash expenses incurred in the course of providing the service (including travel expenses) shall be covered by the agreed service fee and shall not be remunerated separately by the Client. If the Contractor's offer or the letter of engagement provides for compensation for all or certain cash expenses incurred by the Contractor in addition to the agreed service fee, these cash expenses shall be invoiced separately, properly, in full and itemized by electronic receipts. Travel and travel expenses shall only be reimbursable up to the amount charged to comparable federal employees of the General Administrative Service in accordance with the applicable federal travel fee regulations. All costs are only reimbursable up to the total amount specified in the offer or letter of assignment, if applicable.

If the contractor is liable for VAT, the service fee shall be increased by the VAT to be invoiced by the contractor and paid to the tax office. This also applies to cash expenses, in each case less the VAT invoiced by the contractors themselves and therefore to be claimed by them as input tax.If, in addition to their fee and any value-added tax, the contractors have expressly stated other taxes or duties (e.g. advertising tax) incurred in connection with the provision of the commissioned services in their offer, the service fee shall also be increased by these taxes or duties to be paid.

7 Invoicing and terms of payment


7.1.  Invoicing

If the services owed by the Contractors are to be provided over a period not expected to exceed six months, invoicing shall take place after proper completion of all services owed by the Contractors (total invoice). If the services owed by the Contractors are to be provided over a period expected to exceed six months, invoicing shall take place after the end of each quarter for the services actually provided in the quarter (quarterly invoices).

An agreement in the offer or in the letter of engagement on other invoicing intervals (e.g. payment in installments or semi-annual invoices) shall take precedence over the above provision.Invoices shall be sent to the client no later than one month after the provision of the respective contractual services.

7.2 Terms of payment

Payment of the fee shall be made by bank transfer to the account to be specified by the Contractor within 30 days of receipt of a single copy of a correct and complete invoice and of receipt of payment from the Client. The invoice must comply with the statutory requirements (in particular Section 11 UStG; Value Added Tax Act).

Invoice address for the Association:

Austrian Energy Agency - Austrian Energy Agency
Mariahilfer Straße 136
1150 Vienna
UID: ATU 36817502

Invoicing address for the GmbH:

Austrian Energy Agency - Austrian Energy Agency GmbH
Mariahilfer Straße 136
1150 Vienna
UID: ATU 68561834

Invoices can also be sent by e-mail to Rechnung@energyagency.at. The project number and/or the person commissioning the work must be stated on each invoice.

In any case, the due date presupposes that the respective service has been accepted by the contractor and that the transmitted invoice including enclosures has been recognized by the client as factually and arithmetically correct.

8.  Duration of the contract

If the contract establishes a target debt relationship, the contractual relationship shall end with the complete fulfillment of the contract.

If the contract constitutes a continuing obligation, it is concluded for an indefinite period of time and ends upon termination by one of the contracting parties (point 12). The extension of the term of a contract for a continuing obligation concluded for a fixed term requires a written agreement between the contracting parties.

9.  Intellectual property

The contractors shall grant the client all intellectual property rights to all services provided by them and work materials and results in connection with the provision of services, in particular the exclusive and transferable right to use the work without restriction in terms of time and content for all types of exploitation within the meaning of Sections 14 to 18 UrhG (Copyright Act), including the right to modify and further process work results. This granting of rights is covered by the service fee. The Client shall be entitled to transfer these rights of use and exploitation to any full or partial successors of the Client without the consent of the Contractor. In addition, the Principal shall be entitled to transfer sublicenses to these rights of use and exploitation to third parties without the consent of the Contractors.

If the relevant contractual obligation of the contractors is to grant a license to the work results of the contractors, the contractors shall transfer to the client without restriction, for an unlimited period of time and worldwide all intellectual property rights of use and exploitation known at the time of conclusion of the contract and those that become known in the future, such as those arising from the UrhG, PatG (Patent Act) or GMG (Utility Model Act), to the work results. The Contractors shall ensure that they also obtain the above-mentioned rights to be granted to the Principal from all parties involved in the activities within their sphere of influence. To the best of the Contractor's knowledge, no work results infringing the contractual rights of use and exploitation are currently being produced or marketed by third parties.The contractors shall transfer the rights of use to the work results of third parties to the client to the extent licensed in each case. If these rights of use are limited in time, space, content and with regard to the types of use and the transfer according to the preceding paragraph is therefore not possible, the contractors shall inform the client of this and, at the client's request, shall endeavor to obtain a corresponding unrestricted grant of rights at the client's expense.

The client declares that it accepts the transfer of all rights. Cancellation or termination of the assignment, for whatever reason, shall not affect the mutual rights and obligations under this clause.

The contractors guarantee that they have all the necessary rights to grant the client rights of use in accordance with the above paragraphs and shall indemnify and hold the client harmless in this respect.

10. Documents and information

The contractors shall be obliged to examine the execution documents provided to them by the client without delay and to notify the client in writing of any defects and concerns about the intended type of execution that they recognize in the course of exercising due care immediately, but at the latest within two weeks. Upon commencement of the work, the Contractors shall approve the execution documents. If the Contractors violate their inspection and notification obligations, they shall not be entitled to raise claims or objections against the Principal as a result.

The contractors may only use the documents, data and information provided to them by the client for the fulfillment of the contract. Any other use requires the prior consent of the Principal. At the request of the client, the contractors shall make available to the client all data, documents and information that they create in the course of fulfilling the service. At the end of the contract, the contractors shall hand over all data and information relating to the performance of the service in a suitable form to the client or a third party designated by the client.In order to facilitate the reuse of documents from public bodies, in particular to promote the creation of new information products and services, the Contractors undertake (in accordance with Section 1 in conjunction with Section 6 (1) IWG, Information Reuse Act) to provide all data and documents that they are required to provide to the Principal as part of the provision of services in all formats or languages used and, where possible and appropriate, in open and machine-readable format together with the associated metadata. Both the formats and the metadata should comply with formal, open standards as far as possible.At the request of the client, the contractors shall (even after the end of the contract) immediately hand over all data and information relating to the order (including drafts or information collected for the preparation of reports et cetera) in a suitable form to the client or a third party designated by the client.

11.  Confidentiality and data protection

Contractors shall be obliged to treat all technical and commercial information and documents of which they become aware in the course of the contractual relationship as confidential and to maintain secrecy about their contents. Disclosure of information for purposes other than the fulfillment of this contract is not permitted. Contractors shall ensure that their employees and any third parties commissioned by them comply with this obligation.

This confidentiality obligation does not apply to documents and information,for which there is a legal obligation to disclose;

that are demonstrably generally known or become generally known without the Contractor being responsible for this;

which were demonstrably and legitimately known to the contractors before they were made accessible to them by the client;

If the Contractors are permitted to use third parties to fulfill their contractual obligations, they must demonstrably transfer the obligation of confidentiality to the third parties in accordance with the above provision before the third parties commence their activities. The Contractors shall take all reasonable precautions to prevent unauthorized use of confidential information and/or to prevent third parties from accessing such confidential information. The Contractors shall demonstrably oblige all persons who may gain access to this confidential information on the basis of this contract to likewise comply with all confidentiality obligations imposed on the Contractors, even after the termination of the activities of these persons for the Contractors or after the end of the contractual relationship between the Principal and the Contractors.

The obligation to maintain the confidentiality of confidential information and to keep it confidential shall continue to apply without restriction even after termination of the contractual relationship; it shall also extend to confidential information entrusted to the contractors or third parties obliged to maintain confidentiality in the course of contractual negotiations or made accessible in any other way, regardless of whether a contract is concluded.

Contractors are obliged to comply with the Austrian Data Protection Act (DSG) as amended and the European General Data Protection Regulation (GDPR). The contact persons of the Austrian Energy Agency for data protection are data protection officers: Dr. Sonja Hebenstreit, Herbst Kinsky Rechtsanwälte, 1010 Vienna, datenschutz@energyagency.at.

12. Termination

If the concluded contract constitutes a continuing obligation, the contractual relationship may be terminated by the client after one year or by the contractor after one year, subject to a notice period of three months to the last day of each month.

Each contracting party shall be entitled to terminate the present contract for good cause without observing a notice period. Good cause shall be deemed to exist for the client in particular if

a.  circumstances exist that make timely fulfillment of the present contract obviously impossible or lead to significant changes, unless the client itself is responsible for these;

b.  the requirements for the suitability of the contractors, i.e. their authorization, their technical, economic and financial capacity and their professional reliability within the meaning of the Federal Procurement Act (BVergG), cease to exist or did not exist at the time the contract was concluded;

c.  the contractor withdraws or replaces key personnel without the required consent of the client or uses a subcontractor to fulfill the contract;

d.  the contractors directly or indirectly offer, promise or grant a pecuniary advantage to a body of the client that is involved in the conclusion and execution of the contract in question for the client or a third party;

e.  the contractors or persons engaged by them to fulfill the contract violate the confidentiality obligation (see above);

f.  the contractors sell all or most of their business or give it up completely;

g.  the contractors repeatedly violate their contractual obligations despite written warning;

h.  the contractors have taken actions with the intention of harming the client;

i.  the contractors have entered into agreements with third parties that are detrimental to the client, contrary to common decency or the principle of competition;

The termination shall be in writing. In the event of termination, the Client shall reimburse the Contractors - provided that the Contractors are not at fault for the premature termination of the contract and the partial service provided by them is usable for the Client - for the proven cash expenses and pay a portion of the service fee corresponding to the previous workload.

Insofar as the Contractor is at fault for the occurrence of good cause for termination, the Contractor shall reimburse the Client for any additional costs incurred as a result of any subcontracting of the order to a third party.

13. Duty to provide information

As soon as the contractor becomes aware of circumstances that could call into question the contractual fulfillment of the order, they must immediately inform the client in writing about these circumstances and the measures they should consider.

14. Notification of significant changes

The contractors shall inform the client without delay if the contractors come under a changed controlling influence due to the change in the ownership structure or discontinue the business area relating to the contractual services or intend to transfer it to a third party or merge it with the company of a third party.

The client must be informed immediately of any initiation of reorganization proceedings in accordance with the Corporate Reorganization Act or of insolvency proceedings or the rejection of a bankruptcy application due to a lack of assets that are expected to be sufficient to cover the costs of the bankruptcy proceedings.

15.  Joint ventures of contractors

If there are several Contractors, they shall form a joint venture, which shall be jointly and severally liable to the Principal and shall be jointly and severally liable to the Principal for the fulfillment of all obligations under this Agreement. If one company in the group of contractors ceases to exist, the contract for the services still to be provided with the remaining companies shall remain in force, but the Principal shall be entitled to terminate the contract for good cause.

16.  Notification to the media

Communication to the media that relates to the underlying order content is not permitted unless the client gives its written consent in advance.

17.  Final provisions

This contract shall be governed by Austrian law with the exception of the conflict of law rules of private international law and excluding the provisions of the UN Convention on Contracts for the International Sale of Goods (UN: United Nations). All disputes and claims arising out of or in connection with this contract or relating to its breach, termination or nullity shall be subject to the exclusive jurisdiction of the competent court for Vienna, Innere Stadt.

In the event that the Contractor refuses to provide the service or refuses to provide it in breach of contract, the Client shall be entitled to have the service performed by another company of its choice at the expense of the Contractor after the unsuccessful expiry of a reasonable grace period set in writing.

Amendments and additions to this contract must be made in writing in order to be valid, unless a stricter form is mandatory; this also applies to any waiver of this formal requirement.

Should individual provisions of these General and Special Terms and Conditions of Contract or other parts of the contract be or become void, unenforceable or unenforceable in whole or in part, the validity, enforceability and enforceability of the remaining provisions shall not be affected thereby. A void, impracticable or unenforceable provision shall be replaced by a legally valid, practicable and enforceable provision that comes as close as possible to the legal and economic purpose of the void, impracticable or unenforceable provision.

Each contracting party shall notify the other contracting party immediately in writing of any change of address.

The client is entitled to transfer its rights and obligations under the General and Special Terms and Conditions of Contract to a third party.

When commissioning media owners, the contractors acknowledge that the client is obliged to disclose media cooperations and media funding in accordance with the Media Transparency Act (Federal Law Gazette I 2011/125 as amended).

The Contractors agree to the electronic storage of this Agreement and all documents transmitted by the Contractors to the Principal on the basis of this Agreement or in connection with this Agreement and the data contained therein for the purpose of electronic data management by the Principal. The Contractors may revoke their consent at any time without giving reasons with effect for the future.

In accordance with the legal provisions, web-based applications must be accessible in terms of usability, design, content and technical implementation in accordance with Web Content Accessibility Guidelines (WCAG) 2.1 (w3.org/TR/WCAG21/). Unless otherwise agreed separately, the minimum level is conformance level AA. "Content" refers to electronic content of all kinds: Texts, documents, multimedia (audio, video) et cetera. According to the legal provisions, PDF documents must be accessible in terms of usability, design, content and technical implementation in accordance with WCAG 2.1 (w3.org/TR/WCAG21/). Unless otherwise agreed separately, the minimum level is conformity level AA. The ISO standard PDF/UA-1:2014 (DIN ISO 14289-1:2014-02) must be taken into account for the implementation of accessibility in accordance with WCAG 2.1 for PDF documents.

B1.  Special conditions for the delivery of goods


1.  Validity of the conditions for contracts for the delivery of goods

If the contract concluded between the Client and the Contractor contains an obligation on the part of the Contractor to deliver goods, the following conditions shall apply to the provision of these delivery services in addition to the General Terms and Conditions of Contract (Chapter A).

2.  Handover

The contractors bear the costs and risks of the transport until handover at the place of performance; This also applies to mail order purchases. The risk of damage and loss passes to the client when the goods are handed over.

3.  Transfer of risk

The risk only passes to the client when the contractors have handed over the goods to the client's employees, these employees have examined the goods at the place of delivery and have accepted them as correct and the contractors have fulfilled all additional obligations, such as Providing the necessary test evidence, descriptions, operating and usage instructions, copies of the drawings attached to the order and all other necessary documents as well as assembly, installation, commissioning, training and all other precautions necessary in individual cases.

4.  Acceptance

Acceptance takes place through a company-signed acceptance declaration. The mere operational use of the goods does not replace the formal declaration of acceptance.

5. Warranty

The provisions on the notification of defects pursuant to Sections 377 and following of the Austrian Commercial Code (UGB) shall not apply.

B2.  Special conditions for work and services


1.  Validity of the Terms and Conditions for Contracts for Work and Services

If the contract concluded between the Client and the Contractor contains an obligation on the part of the Contractor to provide a service or other work within the meaning of Section 1151 (1) ABGB, the following conditions shall apply to the provision of these work services in addition to the General Terms and Conditions of Contract (Chapter A).

In the event of contradictions between the General Terms and Conditions for Contracts (Chapter A) and the Terms and Conditions for Work and Services, the Terms and Conditions for Work and Services shall take precedence.

The rights and obligations of the contractual relationship between the Client and the Contractor are set out in the following documents in the following order:

2.  General information on the provision of services

The contractors shall be obliged to achieve the performance objective described in the order and its components, in particular the performance objective described in the contractor's offer, i.e. to achieve the objectively derivable success sought by the client.

The contractors shall carry out the services owed by them with the care incumbent on them as professionals and use their specialist knowledge with a view to technically flawless, high-quality and economical execution.

When organizing events, congresses, symposia, etc., the contractors shall ensure that the composition of the panel, the selection of speakers and the participants (invitation policy) is gender-balanced.

3.  Duty to warn

If the contractors have concerns about the legality, correctness or appropriateness of the client's instructions, about the provision of materials or other items or about the services of other companies, they must immediately communicate these concerns to the client in writing and take appropriate measures to remedy or improve them to suggest.

4.  Duty to report

Insofar as the Contractor is obliged to provide intellectual services (e.g. consulting, training, education, etc.), it shall submit a semi-annual report to the Client by 30 June and 31 December, unless other reporting periods have been specified in the offer, with the following content:

(1)  all contractual partial services provided by the contractors and their subcontractors in the past six months;

(2)  summary of the results of the service provision to date;

(3)  a progress analysis with regard to the objective defined by the client for the commissioning of the contractor and a presentation of the change to the progress analysis for the last performance period;

(4)  information on compliance with the agreed schedule;

(5)  Information on the quality assurance measures taken by the contractor;

(6)  Optimization proposals for the further provision of services;

Insofar as the Contractors are obliged to provide intellectual services, they shall also submit a final report to the Principal after completion of all contractually owed services; this report shall present all results of the services provided by the Contractors.

5.  Assignments in the IT area

If the content of the order is an IT service, the following obligations arise in addition to the above-mentioned obligations:

B3.  Special conditions for room rentals


1.  Validity of the terms and conditions for room rentals

If the contract concluded between the client and the contractors contains an obligation on the part of the contractors to provide rooms, the following conditions shall apply to the provision of these rental services in addition to the General Terms and Conditions (Chapter A).

2.  Subject matter of performance

The contractors shall make the premises specified in their offer exclusively available to the client for the entire period specified in the offer.

3.  Rental fee

Unless otherwise agreed, the fee owed by the client to the contractor is a flat rate fee for all services to be provided in connection with the room rental (this includes all costs for service and personnel expenses such as cleaning and material costs, energy and others Consumption costs and other costs for technical systems).

4.  Cancellation

The client is entitled, particularly in the event of a change in requirements, to withdraw from the contract in whole or in part (cancellation). Depending on the time of cancellation, the client owes the contractor a cancellation fee as follows:

  • If the cancellation is received up to four weeks before the agreed start of the room rental: 0% of the agreed rental fee;
  • If the cancellation is received up to two weeks before the agreed start of the room rental: 20% of the agreed rental fee;
  • If the cancellation is received at a later date: 50% of the agreed rental fee.

5.  Miscellaneous

The installation of decorations and technical systems in the contractual premises by the client is permitted to the extent that their installation or removal does not damage the contractual premises.

The contractors are entitled to have food and drinks provided by an external caterer.

The contractors shall bear any legal transaction fees arising from or in connection with the contract(s) concluded between the client and the contractor in accordance with the 1957 Fees Act.