General terms and conditions
General Terms and Conditions for Scientific Research of the Montanuniversitaet Leoben
1. Preamble and Scope
1.1 These general terms and conditions (in short GTC) apply to all legal transactions and contracts concluded after Jan 1, 2004, especially to research and service assignments, expert and consulting services and deliveries with the Montanuniversitaet Leoben as agent.
1.2. Without explicit mutual agreement, the enforcement of the terms and conditions of the contracting party is expressly excluded, even should said terms and conditions be involved in an order, or other form of order placement.
1.3. Deviations from these conditions only become effective when accepted in writing by the agent.
1.4. The possible ineffectiveness of some of the following regulations does not affect the effectiveness of the other regulations. The ineffective regulation has to be replaced by an effective one, which must be as close to the original one as possible.
1.5. The agent is entitled to implement the assign-ment in total or partially by expert employed staff or by commercial self-employed cooperation partners.
1.6. These GTC are subject to Austrian law only. In the case of misinterpretations due to the translation, the German version of the GTC applies and is the legal basis.
1.7. All terms used in the GTC are meant to be gender-neutral.
2. Contract, Offer and Subsidiary Agreements
2.1 Kind and scope of the agreed performance are subject to the respective contract and to the GTC.
2.2 The agent only agrees to implement the contract in proper form according to the rules of science and engineering, but not to procure a certain result.
2.3 A change of the legal position and circumstances after the conclusion of the contract does not influence the contractual relationship between principal and agent.
2.4 The specifications and explanations published in writing or electronically in information material and such, as well as other written or oral comments, are only relevant or substantial for the actual contractual relationship, when they are referred to explicitly in the confirmation of the contract.
2.5 Changes within the contract in the contract confirmation of the agent are deemed to have been accepted by the principal in the absence of an immediate written notification on non-acceptance.
2.6 Changes and amendments to the contract re-quire the written acceptance by the agent in order to become an item of the contractual relationship.
2.7 Generally, agreements must be made in written form; this also applies to a deviation from the formal requirements of the written form.
2.8 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. Disclosure and Cooperation of Principal
3.1. The principal is obliged to supply the agent in due time without any explicit request with all the documents and data necessary for the implementation of the contract. He also agrees to inform the agent about all procedures and circumstances which could be of importance for the implementation of the contract. This also includes the documents, data, procedures and circumstances which become known after the agent has accepted the contract.
3.2. The principal guarantees that all performances and preparatory work the agent is provided with, are in accordance to the Austrian legal practice, so that the agent is not confronted with an infringement of external laws and regulations for incorporeal goods, performance protection, know-how, processing and handling. The principal agrees to indemnify and hold harmless the agent from and against any and all claims concerning competition, incorporeal goods or similar aspects and any possible disadvantages and damages arising from acts or omissions regardless of party. The principal is also obliged to notify the agent immediately of any such pending claims.
3.3. The principal provides for the organizational framework for the implementation of the contract at his business location, which allows for an undisturbed progress of the work in favor of a rapid performance process.
3.4. The principle is responsible for the compliance with and the observation of all safety, legal or official directives, rules and regulations, which are relevant for the use or application of the results of the contract and holds the agent harmless from and against any and all claims.
4.1. Unless otherwise stipulated, a report about the contract result must be submitted in writing.
4.2. The agent is not liable for explanations and information that are not confirmed in writing.
5. Delivery Date/Completion Date
5.1. The principal 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. The delivery or completion date is postponed accordingly in case of unpredictable circumstances or circumstances which cannot be influenced by a party such as acts of God, which impede or delay the compliance with the delivery or completion date.
5.3. The circumstances mentioned above in Clauses 5.1 and 5.2 have to be documented immediately in writing by the contract partners and have to be submitted to the other partner in writing.
6. Intellectual Property Matters of the Agent
6.1. The principal is obliged to insure that the reports, expert services, organization plans, drafts, drawings, calculations and such, which are made by the agent within the framework of the contract are only used for the purposes which have been disclosed to the agent or which are objectively identifiable.
6.2. Subject to the provisions of Clause 6.3 and otherwise stipulated converse individual agreements in writing, all rights (even those, which are created only during the period of implementation) such as incorporeal goods, performance protection, know-how and handling rights, will belong to the agent. This also applies to inventions generated by the agent and the relevant know-how.
6.3. In the absence of otherwise expressly stipulated individual agreements, the principal will receive authorization for the use of the copyrighted work and performances of the agent, based on § 24 Article 1 Clause 1 of the Copy Right Act, after complete payment of the due fee. Furthermore, the contractual performance of the agent can only be passed on for use to a third party with a written agreement of the agent. This does not constitute a third party liability of the agent.
6.4. Unless otherwise stipulated in writing, the use of the contractual performance of the agent for processing or advertising is interdicted. In case of an infringement, the agent has the right to cancel all unfinished orders of the principal without notice, irrespective of all further legal claims.
6.5. It is agreed that the contractor shall, in any event, be permitted, without restriction, to utilize the results of the work generated in the course of the contract, including methods and principles.
7. Confidentiality, Data Protection
7.1. The agent is obliged to maintain silence on all concerns in connection with his work for the principal, unless he is released from the confidentiality by the principal or he is forced by law to give information.
7.2. The agent is entitled to process entrusted personal data within the framework of the earmarking of the contract or to have them processed by third parties (e.g. data processing companies).
7.3. According to § 15 of the Data Protection Act 2000, the agent guarantees the protection of data secrecy. Material entrusted to the agent (EDP media, data, control figures, analyses, programs) and all results from the implementation of the contract will be returned to the principal according to § 11 of the Data Protection Act 2000, unless there exists a written order of the principal for the circulation of the material or results to third parties. The agent commits himself to insure that the principal can meet his duty of disclosure according to § 26 of the Data Protection Act 2000. The necessary orders of the principal have to be submitted to the agent in writing. In case that no fee is stipulated for such information work, the actual expenses have to be charged to the principal. Unless otherwise expressly stipulated in written form, the principal has to comply with his duty to give information to the persons concerned respectively with the registration in the data processing register.
8. Rectification of Deficiencies and Warranty
8.1. Claims for improvement, respectively supplementation of the missing items, have to be met by the agent within reasonable time, which in general should be a third of the period agreed upon for the implementation of the performance. A claim for possible damages due to delay cannot be asserted within this period.
8.2. A shifting of the burden of proof, that is the obligation of the agent to prove his innocence of the deficiency, is excluded.
8.3. A warranty claim requires the immediate documentation of the existing deficiencies in writing by the principal.
9.1. The agent is only liable for intentional damages or damages due to gross negligence up to the amount of the stipulated fee or the maximum insurance sum of a liability insurance concluded with the obligation to assure liabilities.
9.2. In case that commercial EDP-programs are used for the work, the agent accepts no warranty or liability for consequential damages by program deficiencies or other computer bugs.
9.3. Liability for slight negligence, the reimbursement of consequential damages or mere financial loss are excluded.
10.1 Unless otherwise stipulated in writing, the fees have to be invoiced in Euro. In lack of an explicit agreement on fees, the relevant rates of consulting engineers according to their scale of fees are the legal basis.
10.2 Regarding the turnover tax, the invoiced amounts are net values. In general there exists no turnover tax liability. In case that a turnover tax is due, this must be paid additionally after the presentation of an invoice which meets the legal requirements for invoices.
10.3 Unless otherwise stipulated, half of the agreed (or estimated) total fee is due with order, the other half is due with the handing over of the performance.
10.4 The principal has no right to retain payments because of counterclaims or to charge them up against these claims.
10.5 Payments have to be made to the cost center of the agent in the agreed currency without deduc-tion and within two weeks. A payment is considered to be made on the day that is at the disposal of the agent.
10.6 If labor costs for orders, where the performance period lasts longer than two years, should increase in the period between contract conclusion and performance provision due to collective contract regulations, or if other cost centers increase which are relevant to the calculation or to the necessary costs for the performance provision, such as material, energy, transportation, third party labor, financing etc, the agent has the right to increase the prices accordingly two years after the contract conclusion.
10.7 Additional performance, due to changes which are not caused by the agent and require a readaptation or revision of certain parts of the contract, especially due to official requirements, changes in relevant regulations and laws or a change in the demands of the principal, have to be paid extra according to the increased performance scope.
10.8 When the contract is not implemented (e.g. because of cancellation), the agent still has a right to the entire stipulated payment, if he was ready to fulfill the contract and was prevented by circumstances which were caused by the principal (§ 1168 Civil Code). In this case the agent does not have to deduct what he has or could have earned by other utilization.
10.9 In case that the contract is not implemented due to circumstances whose cause is an important reason on behalf of the agent, the agent can only claim the relevant part of the fee for his previous performance.
10.10 In case that the contract is not implemented due to circumstances whose cause is not an important reason on behalf of the agent, clause 10.9 only applies if the previous performance can be used by the principal despite the cancel-lation.
11. Due Fees and Collection Expenses
It is agreed that in case of default of payment, 12% default interest p.a. is charged. In addition, the principal has to compensate the agent for the resulting due fees. Furthermore, all costs and interests, which arise to the agent due to the reminder or the collection of due payments (especially current tariff, out of court lawyer fees which are necessary for the relevant litigation, etc.), and also all costs of litigation in court or otherwise have to be compensated by the principal.
The principal cannot assign any claims to the agent without prior written consent of the agent.
13. Default of Acceptance and Defaulted Cooperation of the Principal
13.1 A default of the principal to accept the offered performance of the agent does not influence the maturity of the fee. If the principal neglects his duty of disclosure or any other cooperation incumbent on him, the agent has the right to cancel the contract without notice after an appropriate respite of at least seven days. Payment can be claimed according to Clause 10.
13.2 Default of acceptance and defaulted cooperation on behalf of the principal also constitute the claim of the agent for reimbursement of all arising additional expenditures and the caused damage if the agent does not use his right of cancellation.
14. Retention of Title
In case of delivery and/or performance of proprietary a retention of title of the agent until the complete payment of the invoiced amounts plus possible interests and costs is agreed upon.
15. Cancellation of Contract
15.1 In case of default, the principal can only cancel the contract after granting an appropriate respite; the respite must be granted by registered mail.
15.2 Unless otherwise stipulated, the requirement for the contract cancellation by the principal is a performance and/or delivery default due to gross negligence of the agent and also the unsuccessful expiration of a granted appropriate respite. The cancellation has to be asserted by registered mail.
15.3 Disregarding all other rights, the agent has the right to cancel the contract
- if the implementation, respectively the start or the continuation of the performance, are impossible for reasons the principal is responsible for, or if the performance is further delayed despite the granting of an appropriate respite,
- if doubts arise concerning the solvency of the principal and if he does not meet the request of the agent for advance payment or does not provide an acceptable security in advance.
15.4 For reasons mentioned above also a still open portion of the delivery or performance can be cancelled.
15.5 In case an insolvency proceeding over the assets of a contract party is initiated or an application for insolvency proceeding is dismissed in lack of sufficient assets, the other contract part-ner has the right to cancel the contract without granting a respite.
15.6 Disregarding the indemnity claims of the agent in the case of a cancellation performances already provided or partially provided have to be charged and paid according to the contract. This is also valid when the delivery or performance has not been accepted yet by the principal and also for preparatory work provided by the agent. Instead the agent also has the right to demand the return of already provided objects.
15.7 Other consequences of a cancellation are excluded.
15.8 Both parties have the right of withdrawal from the contract in the case that it turns out during the period of implementation, that the criteria of the contract cannot be met or provided.
16. Venue and Place of Performance
16.1 Unless otherwise stipulated in writing the place of performance is Leoben.
16.2 In the event of any litigation in connection with possible disagreements arising, the court in Leoben has exclusive jurisdiction.