General terms and conditions of the SECA SECURITY GmbH
1. Preamble
Valid from January 01.01.2010
(1) These General Terms and Conditions shall apply, in so far as a particular client has not specifically agreed otherwise in writing, to all further business relations between the SECA SECURITY GmbH(hereinafter Company) and its client. This also applies in particular to follow-up orders where the General Terms and Conditions are not referred to anymore.
(2)Contracts and legal statements shall be carried out in accordance with the following General Terms and Conditions. Any terms and conditions on the part of the Client differing from the Terms and Conditions shall not be accepted, unless such differing conditions have been specifically negotiated and agreed in writing. Other statements, especially the mere reference to foreign conditions regarding intersecting offers or the company’s acting for performing the contract, do not constitute agreement to the conditions differing from the General Terms and Conditions.
(3) 3)Modifications and amendments of the General Terms and Conditions require the written form in order to be valid. A mutual deviation from the written form requirement shall be expressed in writing.
(4) The terms “consumer” and “entrepreneur” have the meanings ascribed to them in the Austrian Consumer Protection Act (Konsumentenschutzgesetz –KSchG)
2. Contract conclusion and prices
(1) Tenders of the Company are always nonbinding. Unless there is no written contract, the order acceptance takes place via confirmation of order or upon actual performance. In such cases, only the content of the confirmation of order is essential for the scope of services. When no such confirmation exists, the content of the invoice is valid. If the order confirmation/ invoice differs from the contract, the agreement of the Client shall be considered given, if the latter does not object within 7 days.
(2)Offers, orders or assignments by the Client are irrevocable, unless the Client has expressly declared the agreement nonbinding.
(3) 3)If the Company is given an order without agreement upon the costs, the Company is entitled to demand the payment corresponding to the price usually charged according to the price list or – if not available- to charge a fee based on the usual costs for such services. If the corresponding services are
not included in the price list, the company-standard fee shall be valid.
(4) If not explicitly stated otherwise, the prices quoted exclude the legally imposed value-added tax (VAT). If the Client is a consumer within the meaning of the Austrian Consumer Protection Act (KschG), the prices are inclusive of statutory value-added tax as well as all other levies and supplements.
(5)5)If the Client is entrepreneur, the Company is entitled to charge a higher price than agreed if there is a change of the existing current calculation basis -calculated at the moment the order was placedafter conclusion of the contract. The calculation basis includes especially the wage costs because of
collective agreement regulations within the sector, or internal work agreements or costs for materials, energy, transport, subcontracted works and financing. In case of change, the Company will have the right to increase the prices accordingly
(6) Minor deviations from the object of service by the Company are considered approved in advance.
3. Scope of service, warranty and duty of cooperation
(1) The Client bears the unrestricted risk concerning the order confirmation and is obligated to hold the Company harmless against claims by third parties, which result from the fulfilment of the issued order.
(2) Insofar as no other quality standard is laid down in writing, the Company only provides warranty for the quality of the performed services usually found in services of the same kind and reasonably expected by the client.
(3) 3)If there are no special requirements on the part of the Client, the contract performance (use of auxiliary equipment, staff and vehicles) shall be carried out at the free discretion of the Company.
The Company is entitled to meet the contractual obligations by employing its own staff as well as third parties. Solely the Company itself choose the staff concretely employed for the performance of an order. The Client is – unless otherwise stated in writing- authorised neither to demand special staff
nor to refuse personnel specifically employed by the Company.
(4) 4)If the requirements of the Client in the execution of the contact may pose a real and immediate risk to the life and health of the personnel or the integrity of the resources, in particular due to insufficient planning on the part of the Client and the lack of sufficient personnel or resources, the
Company is entitled to employ more staff/auxiliaries and to invoice the additional costs or to finish the operation. If the Company stops carrying out the contract, the Client is demanded full payment.
(5) A sufficient number of keys and technical aids that are required to carry out the service, must be provided by the Client promptly and free of charge. If such a co-operation does not happen or the performance of the contract cannot be carried out due to the Client’s conduct, the Client remains
obligated for the full payment of compensation.
(6) In case of unforeseen events which make it impossible to meet the agreed services or life and health of the stuff as well as the integrity of the operating resources are threatened, the Company is authorised to refuse the full completion of the agreed services .This is particularly applicable to force
majeure, strike and war.
4. Terms of payment and delay
(1) Unless otherwise agreed in an individual contract, a payment period within 14 days as from receipt of the invoice is valid.
(2) If the client delays the payment, the Company is entitled to demand interest for default amounting to 15% per annum.
(3) Furthermore, the Client is obliged –in case of delay – to replace the reminder fee and debt collection to the creditor, as far as necessary for the appropriate legal costs.
(4) For written payment reminders a fixed amount of € 10, — per reminder shall be demanded. If the Company makes use of a debt collection agency, the Client is obliged to replace the remuneration of the agency. If the Company makes use of a legal professional, the legal costs according to the
Lawyers’ Pay Act /Rechtsanwaltstarifgesetz (RATG) respectively the valid General Criteria for Fees (AHK) are to be reimbursed.
(5) Furthermore, the Company is entitled –in case of payment delay- to suspend all services at its choice until full payment, or to terminate the contractual relationship effective and promptly, after the issuing of a written reminder and after having given an appropriate grace period.
(6) The right of all further claims from delayed payment remain unaffected.
5. Registered addresses
(1) For the performance of the contract, the Client is obliged – before starting an order – to provide the data of the important contact persons in writing, including name, address and phone number.
(2) Changes concerning the contact persons or the respective data are to be reported promptly to the Company. If this does not take place in a timely manner, all disadvantages arising shall be for the account of the Client.
6. Non –solicitation agreement
(1) The Client himself as well a third party arranged by the Client are not allowed to employ any person engaged in providing services under this agreement, during the term of this agreement and for the period of one year after its termination.
(2) If the Client fails to comply this agreement, he is obliged to pay a penalty equivalent to the decuple of the last fixed payment, or at least an amount of € 5000,–.
7. Cost estimate
(1) Cost estimates of the Company are non-binding.
(2) If an order is placed due to an already paid cost estimate, the charge paid for this quotation shall be credited.
(3) If an increase in the cost of more than 15% is unavoidable after the placement of the order, the Client knows immediately. If cost increases up to 15% of the original quotation, these costs can be invoiced without a separate agreement.
8. Contract withdrawal and cancellation fee
(1) In the case that the Client withdraws from the contract explicitly or implicitly, the Company is entitled to remuneration for services already provided and to cancellation fee set out below.
(2) If the Client withdraws from the contract during a period from the 14th to the 3rd day before the agreed service provision, the cancellation fee of 50% plus value added tax is to be paid.
(3) If the Client withdraws from the contract within 2 days before the agreed start of the service or on the day of the start, the cancellation fee of 100% of the payment agreed is to be paid.
(4) If the Client withdraws from the contract earlier than 14 days before the agreed start of the service, no cancellation fee has to be paid .The right of the Company to compensation claims regarding already incurred expenses remains unaffected.
(5) For the calculation deadlines, the day of the receipt of the withdrawal declaration at the Company is relevant. A delay of 14 days of the Client concerning services, especially payments or preparative services stipulated in the contract, entitles the Company either to accept the fact tacit and to demand cancellation fee, or to insist on the performance of the contract. If the Company accepts thefact tacit, the 14th day after the due time for the service in delay will be used as event setting the time running for the calculation of the cancellation fee.
(6) A Client who is consumer, is entitled to withdraw from the contract negotiated at distance or a declaration made via distance up to the expiry of the deadlines stated in the following. The declaration of withdrawal is to be sent within the deadlines. The withdrawal time limit is 7 working days. The period begins, in case of goods, from the day receipt by the Client, in case of services, the period starts from the day of conclusion of the contract. The Client shall not be entitled to withdraw from contracts pertaining to services, if their performance has commenced as per mutual agreement within 7 working days from the conclusion pf the contract, (§5e Subsequence 2 first sentence of Consumer Protection Act /Konsumentenschutzgesetz/KSchG), in case of goods produced according to specific client demands and in other cases, where the Consumer Protection Act (KSchG) excludes the right of withdrawal. (§5f KSchG). If it is made use of the right to withdraw declared under this section the Company is obliged to refund payments already made by the Client, and the Client has to return received services, where the costs for return must paid by the Client as agreed..
(7) If the Client is a consumer, he is also entitled to withdraw from the contract or contract proposal, if his declaration of interest toward the conclusion of a consumer business (contract/order and so forth) takes neither place in the Company’s permanent rooms for business purposes, nor at a fair or a stand set up at a market. Withdrawal may be declared until the conclusion of the contract or within one week after its conclusion. The declaration starts with handing over of the contract, but earliest with its conclusion. The withdrawal requires the written form in order to be effective and is to be sent to the Company within the above-mentioned period with postmark as the proof of the date of posting. The right to withdraw does not apply, if the Client himself has prepared the grounds for transactions regarding a contract conclusion with the Company or its agents or, or if there were no negotiations between the parties or agents preceding the contract.
9. Withdrawal of the Company
(1) In case of default of acceptance on the part of the Client or other important reason, like in particular insolvency or rejection of insolvency due to insufficient property as well as default of the Client, the Company is entitled to withdraw from the contract, if the contract is not carried out entirely by both parts.
(2) The Company is entitled to demand a flat-rate compensation amounting to 80% from the gross invoiced amount. The right to demand compensation for the damage actually caused remains unaffected..
10. Liability of the Company
(1) The Company is liable for any damages incurred to the Client due to wrongful act by the Company itself or its staff, caused intentionally or by gross negligence. If the Client is entrepreneur, he is obliged to prove evidence of intentional act or gross negligence.
(2) In the event of slight negligence, the Company is liable towards consumers only for personal injury. (§6 section1 Z 9 Consumer Protection Act/ KSchG).
(3) There is no liability for the Company towards entrepreneurs for indirect damage, consequential damage, loss of profit, financial losses and damages resulted from the interruption of activity. In case of simple negligence towards consumers the Company`s liability is excluded.
(4) The liability for any damage-causing incident towards entrepreneurs is limited to the respective amount of pay. For consumers this is valid only for simple negligence and not for personal injury.
(5) The Client has the right to demand compensation in money, as long as a compensation through improvement/exchange/ supplement of the services is not possible.
(6) If the Client is entrepreneur, claims for compensation shall expire within 6 months from the notice of the damage and its causer, at least within 3 years after the service delivery.
(7) The liability principles regulated in Section 1-6 apply in the intern relationship between Client and Company also in case of making use of the Client due to a negligent conduct by the Company or its staff.
11. Assignment prohibition
The assignment of demands and claims of the Client toward the Company to third parties is not acceptable..
12. Offsetting
(1) The setting off with counterclaims, in particular counterclaims denied by the Company or not recognised by declaratory judgment, shall be excluded.
(2) This does not apply to consumers in case of insolvency on the part of the Company, as well as for counterclaims that are in legal connection with the claim, determined by court or recognised by the Company.
13. Waiver of avoidance
The right to contest due to error or reduction of the true value by more than half shall be excluded.
14. Value guarantee
(1) Any claims of the Company are indexed according to the consumer stocks index 2000.
(2) The measure of value are the index numbers of January 2008. The whole change is applied only after fall or rise of the index up to more than 3%. If the index ceases to be published, it shall be replaced by its successor or the closest corresponding index.
15. Credit score
Should we know any negative information about the financial situation of the Client after contract conclusion, the Company is entitled to demand either immediate payment or the collateralised total charge. In this case, the Company is entitled to withdraw from the contract.
16. Severability
Should an individual provision of the General Terms and Conditions (AGB) be invalid or ineffective, the validity of the contract as a whole shall not be affected. In this case the ineffective provision shall be replaced by a legal provision coming as close as possible to the economic content of the invalid
provision.
17. Governing Law and Jurisdiction
(1) The Austrian Law applies. The application of the UN Convention on Contracts for the International Sale of Goods is explicitly excluded. The settlement of legal disputes that fall within the jurisdiction of the district courts is agreed to be done by the District Court 1010 Vienna (BG 1010 Wien)