General contractual and payment conditions for the Österreich Werbung Association
(A-1030 Wien, Vordere Zollamtsstraße 13)
(As of 01.02.2021)
The Österreich Werbung Association (hereinafter referred to as “ÖW”) principally awards contracts only on the basis of the following terms and conditions.
The contractual partners hereby expressly acknowledge that they have agreed to these legally binding terms and conditions, so that these shall constitute the subject matter of the contract. These order and payment conditions are binding for all current and future business transactions, even if they are not expressly referred to.
Any amendments or modifications to the following terms and conditions must be made in writing and by mutual agreement, whereby, without prejudice to the foregoing, the unamended terms and conditions shall remain an integral part of the contract.
2. Award of contracts
All contracts and agreements shall only be binding for ÖW, if they have been effected in writing and duly signed by both the contractor and ÖW and shall only be binding on ÖW to the extent set forth in the order confirmation.
Offers directed at ÖW shall be free of cost, unless otherwise agreed upon in writing. Unless otherwise specified by ÖW, offers are binding for at least two months.
General Terms and Conditions of the Contractor are hereby excluded. Agreements to the contrary shall require the prior written consent of ÖW
3. Duty to warn
The Contractor shall be obliged to notify the Principal immediately and in writing of any circumstances that have come to its attention, which may jeopardise the fulfilment of the agreed contract, including the details and any proposed measures to be taken in relation thereto.
4. Execution of contract
Provided that the Contractor has been contracted to provide work delivery or work performance, ÖW reserves the right to request amendments or modifications to the contract at any time before acceptance.
The Contractor shall act in the best interest of ÖW and shall, at its own initiative, propose amendments to ÖW, which it deems necessary or appropriate for a successful performance of the contract. The implementation of such amendments shall be subject to the prior written consent of ÖW.
Insofar as an amendment gives rise to an increase or decrease in costs or may lead to a noncompliance with the scheduled delivery time, the Contractor shall be obliged to inform ÖW hereto, in writing, at the time of submitting its amendment proposals, or without delay following the receipt of ÖW’s amendment request and to submit an appropriate supplementary offer.
The amendments shall be made on the basis of a separate written agreement, which shall specify the compensation for additional costs or take into account reduced costs, as well as, if need be, any amendments to the time schedule. The additional compensation shall be determined on the basis of the pricing of the contractual performance and the specific costs related to the requested additional performance.
The transfer of the entire contract or parts thereof to third parties, as well as the hiring of subcontractors and the assignment of individual rights from an order / contract shall only be permissible with the prior written consent of ÖW. In reaching its decision, ÖW shall particularly take into account the experience, suitability in terms of procurement law, and the financial standing of the subcontractor, as well as the interests of the contractor.
6.1 Dates and partial services
Unless otherwise agreed upon for the respective contract, the Contractor shall make its deliveries to the agreed delivery address or to the address specified in the order confirmation “DDP” (pursuant to INCOTERMS 2000).
ÖW shall notify the Contractor, without delay, of any defects in delivery, as soon as they become apparent in the ordinary course of business. The duty to give notice of defects pursuant to Art. 377 UGB is thus hereby expressly waived.
Unless otherwise expressly agreed upon in writing, partial performances and/or partial deliveries shall not be permitted.
If the contractor enters into default, ÖW is entitled to charge a price reduction of 0.5% per day of the total order value excluding VAT, but up to a maximum of 10% of the total order value excluding VAT.
6.2 Force Majeure
Force majeure exists if ÖW or the Contractor is prevented from fulfilling his/her contractual obligations by an event that lies outside of his/her sphere of influence and could not be foreseen or - insofar as it was foreseeable - was unavoidable.
A case of force majeure is classified as such when it meets the above requirements. Force majeure includes in particular:
i. the outbreak of infectious disease, war, riot, sabotage or terrorism;
ii. Natural disasters such as lightning, fire, explosion, flood, and earthquake;
iii. official orders in connection with sub-items i. and ii .;
The contracting parties are released from fulfilling their contractual obligations in correspondence with the extent and duration of the force majeure event. If the mutual services are to be provided in connection with a fixed delivery date, both contracting parties are permanently released from the mutual obligations in the event of force majeure. Both contracting parties bear the costs incurred by themselves. Costs that the contractor incurred by way of third parties in connection with the order in question before the occurrence of this event will be borne by the contractor.
The contracting party affected by an event of force majeure must immediately and demonstrably notify the other contracting party of the occurrence of a force majeure event. The expected duration of this event and the extent to which the fulfillment of the contractual obligations is impaired must be disclosed as far as possible. The contracting party affected by the force majeure event must make all reasonable efforts to re-fulfill the contract as soon as possible, provided that the subject of the contract is not one with fixed delivery date(s), where time is of the essence.
In the event that a force majeure event interrupts the fulfillment of the contractual obligations for more than 6 weeks, both contracting parties are entitled to withdraw from the contract. Both contracting parties bear the costs incurred by them. Costs that the contractor incurred by way of third parties in connection with the order in question before the occurrence of this event will be borne by the contractor.
It is hereby made clear that no contracting party can assert claims for damages due to a contract termination or delay in the provision of services in the event of force majeure.
6.3 Acceptance and transfer of the required documents
In case the Contractor owes work performance or work delivery, a formal acceptance by ÖW shall be required. In case the inspection of the supplier’s performance requires it being put into use or commissioning for testing purposes, acceptance shall only ensue after a successful completion of such tests.
Risks and title to the delivered item shall pass to ÖW upon acceptance.
7. Quality of execution and failure in performance
The contractor shall be obliged to supply the delivery and / or service to the extent contractually agreed on, by the agreed delivery date at the agreed price.
The Contractor shall deliver and / or supply the highest quality in accordance with the respective performance standard (e.g. state of the art), unless otherwise agreed upon in writing in individual cases.
In the case of improper performance (particularly with respect to the delivery date, quantity and / or quality), ÖW shall, without prejudice to claims for damages, be entitled to use the following options available, at its own discretion:
- In case of non-compliance with the agreed delivery date and / or significant defects in quality and quantity, to rescind the contract without granting an extension;
- to grant a reasonable extension for the rectification of defects, whereby, at the discretion of ÖW, the rectification shall either take the form of a replacement or repair;
- to have the rectification of defects carried out by a third party and demand a reduction in price, whereby all costs relating thereto shall be borne by the Contractor and the latter shall not have any entitlement to selecting the company, which shall be carrying out the rectification of defects;
- in the case of rescission of the contract, to award the contract to a third company, whereby additional costs shall be borne by the contractor.
8. Rescission of contract
In the case of a justified rescission of the contract on the part of ÖW (due to non-performance, delay or improper performance by the Contractor), the Contractor shall in any case be obliged to pay to ÖW, as minimum compensation and without prejudice to further claims for damages by ÖW, contractual penalty irrespective of fault amounting to 20% of the net contract value.
9. Extraordinary right of termination
ÖW shall be entitled to terminate the contract regarding an order or parts thereof, with immediate effect, if, based on serious grounds, ÖW can no longer be expected to continue with the contract. ÖW can particularly not be expected to continue with the contract, if
- the Contractor fails to provide the agreed service or fails to provide it on time,
- the Contractor fails to meet the agreed deadlines and there is a risk of delay regarding the timely provision of the service and/or delivery,
- the contractor fails to rectify defects, after being requested to so by ÖW, within the reasonable period given,
- the Contractor violates any other provision of these General Terms and Conditions and Payment, or of the Contract, or of official regulations,
- the Contractor becomes insolvent, suspends payments or an application for the opening of insolvency proceedings against the assets of the Contractor is lodged or has been rejected for lack of sufficient assets.
- there is an infringement of the provisions of the MedKF-TG and the Contractor fails to undertake necessary modifications, despite having been requested to do so by ÖW.
the Contractor and / or its subcontractors do not and / or no longer meet the suitability requirement, within the meaning of procurement law.
In the event that the contract is terminated by ÖW based on serious grounds, ÖW shall only be obliged to remunerate services demonstrably provided up until that point, which have been provided in their entirety and in accordance with the contract, provided that these are still usable by ÖW even after the termination of the contract. ÖW shall acquire rights of use over the deliveries and services rendered up until the time of termination, to the extent provided for in clause 13 of these general contractual and payment conditions.
The Contractor shall be obliged to maintain strict confidentiality with respect to all trade and commercial secrets of the Principal and its clients, entrusted to it or which have otherwise become known to it in the course of the contractual cooperation, in particular as unprotected practical knowledge (know-how), towards third parties and to refrain from, either directly or indirectly, exploiting this knowledge itself for through third parties. Furthermore, the contractor undertakes to use information only on a “need to know” basis and only within the framework of the concluded contract.
This obligation of confidentiality in particular also encompass the conclusion and content of contracts entered into with ÖW, as well as all circumstances and information pertaining to individual orders.
The Contractor shall be obliged to impose on its employees and / or any third parties, which have been engaged by it for the purpose of implementing the project, a corresponding confidentiality obligation and to provide evidence of this to ÖW, at the latter's behest, by providing copies of these agreements.
All documents, drafts, templates etc., made available to the contractor, by ÖW or its clients, for the implementation of the contract, shall be promptly returned to ÖW, undamaged and without being requested to do so, upon completion of the respective contract. The production of physical or electronic copies shall only be permissible after consultation with ÖW. Any produced copies must be destroyed and / or deleted following the completion of the contract. The contractor shall, for whatever reason, not be entitled to a right of retention.
This obligation of confidentiality shall continue to apply even after the implementation of the individual contracts.
In case of a violation of the confidentiality obligation, the contractor shall be liable to pay to ÖW a contractual penalty, irrespective of fault, per violation, amounting to 10% of the net contract value. All other claims by ÖW, of whatever kind, shall remain unaffected by this contractual penalty, which constitutes minimum compensation.
Advertising and publications about orders from ÖW, as well as the inclusion of ÖW in the contractor's reference list, require the prior written consent of ÖW.
11. Employment of workersIn the event that workers are hired or contracts for work labour are entered into by the contractor, in the course of the fulfilment of the contract, the contractor shall act as the employer and conclude employment contracts and / or contracts for work labour in its own name at its own expense and shall take on the obligations resulting therefrom. The Contractor shall be liable for the culpable misconduct of all persons used by it in the course of the fulfilment of its contractual obligations, to the same extent as it would be for its own culpable misconduct.
12. Data Protection
The Contractor shall oblige its employees to comply with the provisions of the Data Protection Act and GDPR. The contractor hereby also confirms that all employees commissioned with data processing are subject to an obligation of confidentiality that remains in effect even after their work with the contractor has ended.
13. Invoicing and payment
In the absence of individual written agreements to the contrary, the remuneration shall be paid to the Contractor within 30 days, following the receipt by ÖW of an appropriate and verifiable invoice, faultless performance and/or delivery and possible acceptance, pursuant to clause 6.3.
For the calculation of the due date for payment, deliveries and / or performances, which have been rendered before the agreed date of delivery and / or performance shall only be deemed as having been received at the time of the agreed delivery and / or performance date.
A notification of defects by ÖW shall interrupt the payment deadline for the invoice, pursuant to paragraph 1 of this provision.
Customs, legal fees, taxes (excluding corporate tax to be paid by ÖW), delivery and transportation costs, and packaging costs shall be borne by the contractor. All prices are listed in euros and are exclusive of value added tax.
The agreed fixed prices include all services that are necessary for the proper fulfilment of the contract, in particular any installation and documentation costs, costs for any license fees, packaging, transport, insurance and unloading costs, public fees and charges, as well as social benefits and expenses.
ÖW shall be entitled to retain and / or deduct from the invoice of the contractor any payment of taxes, not payable by ÖW, which are deducted by the competent authority and / or should be retained by ÖW. Proof of such tax payments, by providing relevant documents, shall be made available to the contractor upon request.
The parties agree that Vienna shall be the place of payment and performance.
14. Proprietary rights
The contractor shall be obliged to ensure that all services it provides are free from any proprietary rights of third parties and/or that it has the authority to transfer the corresponding usufructuary rights to ÖW.
The Contractor shall indemnify and hold harmless ÖW, from and against, any and all third party claims, which are brought against ÖW, owing to a use of the service provided by the Contractor. The foregoing is without prejudice to ÖW’s right to claim damages and rescind the contract, in accordance with statutory provisions.
All copyrights, industrial property rights and other physical or intellectual property rights to the contractual service provided and to all other documents, machine-readable as well as other work results achieved within the framework of individual contracts, arising in the course of the execution of the contract shall pass to ÖW upon their creation, without further conditions and without additional charges. These rights shall exclusively belong to ÖW, without any restrictions in terms of territory, time or content and may be extended, transferred, modified, adapted, amended, duplicated or published by ÖW without Contractor's consent. Semi-finished products (printed films, excluding geographical maps) shall become the property of ÖW and ÖW shall have the rights to use these to the extent mentioned above.
15. Severability Clause
Should any provision of these general contractual and payment conditions and any future contracts concluded on the basis thereof be or become invalid, this shall not affect the validity of the remaining provisions of these general conditions of purchase and/or the contract. The contracting parties agree to make all reasonable efforts to replace the invalid provision with one which, to the greatest extent possible, achieves the intended commercial result of the original provision.
16. Formal requirements and offsetting
Changes or additions to the contract must be made in writing. This also applies to changes to the written form requirement.
Offsetting against claims by ÖW with counterclaims of any kind is not permitted.
17. Choice of Law and Jurisdiction
The contract shall be exclusively governed by Austrian law, to the exclusion of the reference norms of the Austrian Private International Law Act (IPRG) and the UN sales law. The contracting parties hereby agree that the respective competent court within the jurisdictional district of the First District of Vienna, shall have exclusive jurisdiction over any disputes arising from or in connection with the contract.