General Terms and Conditions
1) Validity of the General Terms and Conditions and deviations
a) The following General Terms and Conditions apply to all present and future contracts between the client in his capacity as an entrepreneur and EVALUS GmbH.
b) Deviations from these conditions and in particular also conditions of the customer are only valid if they are expressly recognized and confirmed in writing by EVALUS GmbH.
2) Offers, collateral agreements
a) The offers of EVALUS GmbH are, unless otherwise stated, subject to change without notice with regard to all stated data including the fee.
b) If an order confirmation from EVALUS GmbH contains changes to the order, these shall be deemed to have been approved by the customer unless the customer immediately objects in writing.
c) Agreements must always be made in writing.
3) Placing of orders
a) The nature and scope of the agreed service are set out in the contract, the power of attorney and these General Terms and Conditions.
b) Changes and additions to the order must be confirmed in writing by EVALUS GmbH in order to become the subject of this contractual relationship.
c) EVALUS GmbH undertakes to properly execute the order placed with it in accordance with the generally recognized rules of technology and the principles of economic efficiency.
d) EVALUS GmbH may engage other appropriately authorized persons for the performance of the contract and place orders with them in the name and for the account of the client. However, EVALUS GmbH is obliged to inform the client of this intention in writing and to give the client the opportunity to object to this placing of an order with a third party within 10 days.
e) EVALUS GmbH may also engage other appropriately authorized persons as sub-planners for the performance of the contract and place orders with them in the name and for the account of EVALUS GmbH. However, EVALUS GmbH is obliged to inform the client in writing if it intends to have orders carried out by a sub-planner and to give the client the opportunity to object to this order being placed with the sub-planner within one week; in this case, EVALUS GmbH must carry out the order itself.
4) Warranty and compensation
a) Warranty claims can only be made following notification of defects, which must be made exclusively by registered letter within 14 days of delivery of the service or partial service.
b) Claims for rescission and price reduction are excluded. EVALUS GmbH shall fulfill claims for improvement or supplementation of the missing items within a reasonable period of time, which shall generally be one third of the period agreed for the performance of the service. A claim for damages caused by delay cannot be asserted within this period.
c) EVALUS GmbH shall render its services with the care to be expected of it as a professional (§1299 ABGB).
d) If EVALUS GmbH has culpably caused damage to the client in breach of its contractual obligations, its liability for compensation for the damage caused thereby – unless otherwise agreed in the individual case – shall be limited as follows in the case of slight negligence:
1) for personal injury without limitation,
2) in all other cases with the following limitations:
– for an order amount of up to 250,000.00 euros: maximum 12,500.00 euros;
– for an order amount over 250,000.00 euros: 5 % of the order amount
3) Liability for consequential damage and loss of profit is also excluded in cases of gross negligence, unless otherwise agreed in individual cases.
5) Withdrawal from the contract
a) Withdrawal from the contract is only permissible for good cause.
b) If EVALUS GmbH is in default with a service, the client may only withdraw from the contract after setting a reasonable grace period; the grace period must be set by registered letter.
c) EVALUS GmbH shall be entitled to withdraw from the contract if the client defaults on a partial service or an agreed cooperation activity which makes the execution of the order by the engineering company impossible or considerably hinders it.
d) If EVALUS GmbH is entitled to withdraw from the contract, it shall retain the right to the entire agreed fee, likewise in the event of unjustified withdrawal by the client. Furthermore, §1168 ABGB (Austrian Civil Code) shall apply; in the event of justified withdrawal by the client, the services rendered by EVALUS GmbH shall be remunerated by the client.
6) Fee, scope of services
a) Unless otherwise stated, all fees are in EURO.
b) The fees quoted do not include value added tax (VAT), which must be paid separately by the client.
c) Compensation with any counterclaims, for whatever reason, is inadmissible.
d) Unless otherwise agreed, the non-binding calculation recommendations issued by the Fachverband Ingenieurbüros shall form part of the contract.
e) Unless expressly agreed otherwise, payment shall be made without deductions within 30 days of invoicing to the account of a bank with a domestic branch specified by EVALUS GmbH. In the event of late payment, interest shall be payable at a rate of 9.2% per annum above the ECB prime rate plus reminder fees.
7) Place of fulfillment
The place of performance for all office services is the registered office of EVALUS GmbH.
a) EVALUS GmbH is obliged to maintain confidentiality of all information provided by the client.
b) EVALUS GmbH is also obliged to maintain secrecy regarding its planning activities if and as long as the client has a legitimate interest in this secrecy. After completion of the order, EVALUS GmbH is entitled to publish the contractual work in whole or in part for advertising purposes, unless otherwise contractually agreed.
9) Protection of the plans
a) EVALUS GmbH 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 is only permitted with the express consent of EVALUS GmbH. All documents may therefore only be used for the purposes expressly specified when the order is placed or by a subsequent agreement.
c) EVALUS GmbH is entitled, and the client is obliged, to use the name (company, business name) of EVALUS GmbH in publications and announcements about the project.
d) In the event of violation of these provisions for the protection of the documents, EVALUS GmbH shall be entitled to a penalty in the amount of twice the reasonable fee for the unauthorized use, whereby the right to assert a claim for damages in excess thereof is reserved. This penalty is not subject to judicial moderation. The burden of proof that the client has not used the documents of EVALUS GmbH lies with the client.
10) Choice of law, place of jurisdiction
a) Austrian law shall apply exclusively to contracts between the client and EVALUS GmbH.
b) For all disputes arising from this contract, the jurisdiction of the competent court at the registered office of EVALUS GmbH is agreed.