General Terms and Conditions of SECA SECURITY GmbH
1. Preamble
Valid from January 1, 2024
(1) These General Terms and Conditions (hereinafter: GTC) apply to all business relationships between SECA SECURITY GmbH (hereinafter: Company) and its customers (hereinafter: Client), unless otherwise expressly agreed in writing with a specific client in a particular case. This also applies in particular to subsequent orders, for which no further reference is made to these GTC.
(2) Contracts and legally binding declarations are concluded exclusively in accordance with the following GTC. Deviating terms and conditions of the Client shall not become part of the contract unless their validity has been separately negotiated with the Client in a specific case and expressly agreed upon in writing. Other declarations, in particular the mere reference to third-party terms and conditions in cross-offers, or actions taken by the Company to perform the contract, do not constitute acceptance of contractual terms that deviate from these GTC.
(3) Amendments and additions to these General Terms and Conditions must be in writing to be effective. Oral side agreements are invalid. Any mutual agreement to waive the written form requirement must also be in writing.
(4) The terms “consumer” and “entrepreneur” correspond to the terminology of the Austrian Consumer Protection Act (KSchG).
2. Conclusion of Contract and Prices
(1) Offers made by the company are always non-binding. Unless a written contract is concluded, orders are accepted either by order confirmation or by actual performance. In these cases, the content of the order confirmation is exclusively decisive for the contractual scope of services; if no such confirmation exists, the content of the invoice applies. If the order confirmation/invoice deviates from the order, the client’s consent is deemed given unless they object within 7 days of receipt.
(2) Offers, orders, or purchase orders from the client are irrevocable unless the client has expressly stated that these declarations are non-binding.
(3) If an order is placed with the company without a agreed-upon fee, the company is entitled to charge the fee listed in its current price list or, in the absence of such a list, the fee customary in the industry for this service. If the service in question is not included in the price list, the customary fee in the industry shall also be deemed agreed upon.
(4) Unless explicitly stated otherwise, prices are exclusive of applicable value-added tax (VAT). If the client is a consumer within the meaning of the Austrian Consumer Protection Act (KSchG), prices include statutory VAT and all other taxes and surcharges.
(5) If the client is a business, the company is entitled to charge a higher purchase price than agreed upon if the basis for calculation existing at the time the order was placed changes after the conclusion of the contract. This basis for calculation includes, in particular, labor costs based on collective bargaining agreements in the industry or internal company agreements, as well as costs such as those for materials, energy, transportation, subcontracted work, and financing. If these conditions change, the company is entitled to increase the prices accordingly.
(6) Minor deviations from the scope of services by the company and additional safety-related services that prove necessary for the execution of the order are deemed approved in advance.
3. Scope of Services, Warranty, and Duty to Cooperate
(1) The client bears the unrestricted risk of placing the order and is obligated to indemnify and hold harmless the company from any third-party claims arising from the fulfillment of the order.
(2) Unless a more extensive quality standard has been agreed upon in writing, the company only warrants that the services it provides will be of a quality that is customary for services of the same type and that the client can reasonably expect.
(3) Unless the client provides specific instructions, the company will perform all contractual obligations (use of equipment, personnel, and vehicles) at its sole discretion. The company is entitled to fulfill its contractual obligations not only through its own personnel but also through third parties. The decision as to which individuals are specifically assigned to carry out a particular task rests solely with the company. Unless otherwise agreed in writing, the client is not entitled to specify particular individuals to perform the contract.
(4) Should an immediate and serious danger to the life or health of the personnel deployed or the integrity of the equipment arise due to requests or instructions from the client regarding the execution of the contract, in particular because the information or plans provided to the company by the client were insufficient, or an insufficient number of security personnel were allocated, or the client provided insufficient equipment, the company is entitled, at its own discretion, either to deploy more personnel/auxiliary staff than agreed upon and invoice the client for the additional expenses, or to abandon the contract. The same applies if requests or instructions from the client are changed during the execution of the contract and an immediate and serious danger to the life or health of the personnel deployed or the integrity of the equipment is foreseeable as a result. If the company decides to abandon the contract, the client must pay the full fee.
(5) If technical aids such as keys, access cards, etc. are required for the execution of the contract, the company shall be entitled to… If required, the client shall provide these items free of charge and in the required quantity in a timely manner. If the client fails to provide the necessary cooperation or if the company is prevented from fulfilling the contract for reasons attributable to the client, the client remains obligated to pay the agreed fee.
(6) Should administrative offenses become necessary for the performance of the contract or to ensure the safety of persons, the client undertakes to reimburse any fines incurred for such offenses, in particular for speeding and illegal parking.
(7) If unforeseen events render the provision of the agreed services impossible or pose a serious risk to the life or health of the personnel deployed or to the integrity of the equipment deployed, the company is entitled to refuse to provide the agreed services. This applies in particular to cases of force majeure, strikes, war, or epidemics. The client remains obligated to pay the agreed fee even in these cases.
(8) If the client becomes aware of any facts or investigations relevant to criminal or security police matters in connection with the contract, in particular in the context of carrying out personal or property protection measures, the client shall inform the company immediately.
4. Payment terms and default
(1) The company is entitled to demand a reasonable advance payment.
(2) Unless otherwise agreed in an individual contract, payment is due within 7 days of receipt of the invoice.
(3) In the event of late payment by the client, the company is entitled to charge default interest at a rate of 15% of the invoice amount.
(4) The client further undertakes to reimburse the creditor for any dunning and collection expenses incurred in the event of default, insofar as they are necessary for the appropriate pursuit of legal action. A flat fee of €10 per letter is agreed for dunning letters sent by the client. If the company engages a collection agency, the client undertakes to reimburse its fees. If the company engages an authorized representative, the client shall reimburse the fees based on the Lawyers’ Fees Act (RATG) or the General Fee Criteria (AHK) in their respective valid versions.
(5) Furthermore, in the event of default of payment by the client, the company is entitled, at its own discretion, to suspend all services to the client until full payment is received or to terminate the contractual relationship with immediate effect after issuing a written reminder and setting a reasonable grace period.
(6) The assertion of further claims arising from default of payment remains unaffected.
5. Contact addresses
(1) The client is obligated to provide the company with the contact details of all relevant personnel for the fulfillment of its contractual obligations, including their names, addresses, and telephone numbers, in writing before the commencement of the project.
(2) The client must immediately notify the company of any changes to contact persons or their contact information. Failure to do so, or failure to do so in a timely manner, will result in all resulting disadvantages being borne by the client.
6. Non-Solicitation Clause
(1) The client may not employ, either directly or through third parties, any persons commissioned by the company to perform services, either during the term of this contract or for one year thereafter.
(2) If the client violates this agreement, they are obligated to pay a penalty equal to ten times the most recently invoiced monthly fee, but at least €5,000.
7. Cost estimate
(1) Cost estimates provided by the company are non-binding.
(2) A fee paid for a cost estimate may be credited if an order is placed based on that estimate.
(3) Should cost increases exceeding 15% of the original estimate arise after the order has been placed, the client will be notified immediately. For unavoidable cost overruns of up to 15%, the costs may be invoiced without further notice.
8. Contract cancellation by the client and cancellation fees
(1) The express or implied cancellation of the contract by the client not only obligates the client to reimburse the company for expenses already incurred, but also entitles the company to demand cancellation fees from the client in accordance with the following provisions.
(2) If the cancellation occurs between 14 and 3 days before the agreed start of services, the cancellation fee is 50% of the fee owed under the agreement, plus statutory VAT.
(3) If the cancellation occurs within 2 days before the agreed start of services or on the day of the start of services itself, the cancellation fee is 100% of the agreed fee. Any applicable contract fee is calculated on the total amount and will be collected in full in any case.
(4) If the cancellation occurs more than 14 days before the agreed start of services, the cancellation is free of charge. The company’s right to demand reimbursement of incurred expenses from the client naturally remains unaffected in this case as well.
(5) For the calculation of deadlines, the date of receipt of the notice of cancellation by the company is decisive. A 14-day delay by the client in fulfilling its obligations, in particular payments or contractually stipulated preparatory actions, entitles the company, at its sole discretion, either to consider this a tacit cancellation and invoice the cancellation fee, or to insist on performance of the contract. If the company decides to consider the delay a tacit cancellation, the 14th day after the due date of the service with which the client is in default shall be deemed the triggering event for calculating the cancellation fee.
(6) If the client is a consumer, the right of withdrawal is governed by the relevant provisions in Sections 3, 3a, and 4 of the Austrian Consumer Protection Act (KSchG) and, in the case of distance contracts and contracts concluded off-premises, by Section 3 of the Austrian Distance Selling Act (FAGG).
(7) If the client is a consumer, they may withdraw from the contract or their contractual offer even if they did not submit their declaration of intent to conclude a consumer transaction (order, purchase order, etc.) in the company’s premises permanently used for its business purposes, nor at a stand used at a trade fair or market. Withdrawal may be declared until the contract is concluded or within one week thereafter. The period begins upon delivery of the contract, but no earlier than the conclusion of the contract. For the withdrawal to be legally effective, it must be in writing and must be sent to the company within the aforementioned period. The date of the postmark is decisive. The right to withdraw does not exist if the client himself initiated the business relationship with the company or its agents for the purpose of concluding a contract, or if the contract was not preceded by a discussion between the parties or their agents.
9. Company’s withdrawal from contract.
(1) Bei Annahmeverzug des Kunden oder anderen wichtigen Gründen wie insbesondere Konkurs des Kunden oder Konkursabweisung mangels Vermögens sowie bei Zahlungsverzug des Kunden ist die Gesellschaft berechtigt, vom Vertrag zurückzutreten, sofern dieser von beiden Seiten noch nicht zur Gänze erfüllt ist.
(2) Trifft den Auftraggeber an den Umständen, die zum Rücktritt der Gesellschaft geführt haben, ein Verschulden, ist die Gesellschaft berechtigt, einen pauschalierten Schadenersatz von 80 % des Bruttorechnungsbetrages zu fordern. Das Recht, den Ersatz des tatsächlich entstandenen Schadens zu fordern, bleibt davon unberührt.
10. Company liability
(1) The company is liable for damages incurred by the client due to its own culpable conduct or the culpable conduct of its employees only in cases of intent or gross negligence. If the client is a business, it must prove intent or gross negligence in all cases.
(2) Liability for slight negligence exists only in cases of personal injury to consumers (Section 6 Paragraph 1 Item 9 of the Austrian Consumer Protection Act).
(3) The company’s liability for indirect and consequential damages, lost profits, pecuniary losses, and damages resulting from business interruption is always excluded with respect to businesses, but only in cases of slight negligence with respect to consumers.
(4) Liability for each event causing damage is always limited to the amount of the respective fee with respect to businesses. For consumers, this applies only in cases of slight negligence and not to personal injury.
(5) The client may only claim monetary compensation on the basis of damages if compensation in kind through improvement, replacement, or supplementation of the service is not possible and feasible.
(6) If the client is a business, claims for damages become time-barred within six months of the client becoming aware of the damage and the liable party, but in any event within three years of the service being rendered.
(7) The principles of liability set forth in paragraphs 1 to 6 shall apply mutatis mutandis to the internal relationship between the client and the company even if the client has been or is being held liable due to culpable conduct on the part of the company or its employees.
11. Prohibition of assignment
The assignment of claims and rights of the client against the company to third parties is inadmissible.
12. Prohibition of set-off
(1) Offsetting against counterclaims, in particular those disputed by the company or not legally established, is excluded.
(2) However, this does not apply to consumers in the event of the company’s insolvency, nor to counterclaims that are legally related to the claim, have been legally established, or have been acknowledged by the company.
13. Waiver of right to appeal
The right to contest the contract due to error or reduction by more than half of its true value is excluded.
14. Value retention
(1) All claims of the company are indexed to the Consumer Price Index 2020.
(2) The index figures for January 2024 serve as the benchmark. The full change will only be applied if the index falls or rises by more than 3%. Should this index cease to be published, the replacement index or another comparable index will be used.
15. credit-worthiness
Should we receive negative information about the client’s financial situation after the conclusion of the contract, the company is entitled to demand either immediate payment or bank guarantee of the total fee. In this case, the company is also entitled to withdraw from the contract.
16. Severability clause
Should individual provisions of these Terms and Conditions be invalid or unenforceable, this shall not affect the validity of the remaining provisions. In this case, the invalid or unenforceable provision shall be deemed replaced by a valid provision that most closely approximates the economic purpose of the invalid or unenforceable provision.
17. Applicable law and jurisdiction
(1) The application of Austrian law is agreed upon, with the exception that the application of the UN Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.
(2) The exclusive place of jurisdiction is Vienna. For legal disputes falling within the jurisdiction of the district courts, the jurisdiction of the District Court of Vienna (1010) is agreed upon.