Standard Terms of Business (STB) of Materials Center Leoben Forschung GmbH (In force from 1.1.2010)
1 Preamble and scope of application
1.1 These Standard Terms of Business (hereinafter STB) shall apply to all contracts and orders concluded from 1.1.2010 onwards, in particular to orders for research and services, expert opinions, expert activities and deliveries in which the contractor is the Materials Center Leoben (hereinafter the Contractor).
1.2 The application of any STBs of the Client is expressly excluded.
1.3 Deviations from the conditions under 1.1 and 1.2 shall only be effective if acknowledged in writing by the Contractor.
1.4 If individual provisions of the following should be invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid provision that comes as close as possible to the objective intended.
1.5 The Contractor shall be entitled to have the order carried out (in whole or in part) by employed specialist staff or by commercial/freelance cooperation partners.
1.6 Austrian law shall apply exclusively.
1.7 All designations contained in the STB shall be given a gender-neutral interpretation.
1.8 The UN Sales Convention shall be excluded.
2 Order, offer and collateral agreements
2.1 The type and scope of the service agreed shall be determined from the contract in question and these Standard Terms of Business.
2.2 The Contractor only undertakes to carry out the contractual services according to the standards of science and technology.
2.3 In the case of research activities going beyond the state of the art, the obtaining of the intended objectives cannot be guaranteed.
2.4 If the legal or factual situation changes after the conclusion of the contract, such shall have no influence on the present contractual relationship.
2.5 The details and statements contained in information material and the like published in print or electronically and other written or oral comments shall only be decisive or relevant for the present contractual relationship if such are referred to expressly in the confirmation of the order.
2.6 If the Contractor’s confirmation of an order contains modifications as against the order, it shall be deemed to be approved by the Client unless the Client objects in writing without delay.
2.7 Amendments and additions to the order shall require the Contractor’s written confirmation if they are to become the subject matter of the contractual relationship.
2.8 Agreements shall as a matter of principle require the written form; the same shall apply to the abandonment of the formal requirement of the written form.
3 Client’s obligations to inform and participate
3.1 The Client shall ensure that even without special request by the Contractor the Contractor is provided with all the documentation necessary for the execution of the order in good time and that it shall be informed of measures and circumstances that could be of significance for the execution of the order. This also applies to documentation, measures and circumstances that only become known during the Contractor’s activity.
3.2 The Client shall ensure that where works and preliminary works are made available to the Contractor by the Client, the legal conditions with respect to such works and preliminary works are such that the Contractor is not faced with an infringement of another’s intellectual property rights, ancillary copyright, know-how or adaptation rights. The Client shall indemnify and hold the Contractor harmless with respect to such competition law, intellectual property and similar rights, and in particular shall compensate the Contractor for all and any disadvantages incurred, irrespective of fault. Correspondingly, the Client undertakes to inform the Contractor without delay if claims on the grounds of an infringement of intellectual property or other protective rights are in the offing.
3.3 The Client shall ensure that, where the order is executed at its place of business, the organisational conditions permit undisturbed and rapid progress of the work.
3.4 The Client shall bear responsibility for compliance with and observance of all safety, statutory and official regulations, provisions and rules relevant for the use and application of the results of the order, and shall indemnify and hold the Contractor harmless in this respect.
4.1 Unless agreed otherwise, a written report shall be prepared on the results of the order.
4.2 The Contractor shall not be liable for statements and information not confirmed in writing.
5 Delivery period/completion deadline
5.1 The Client shall at its own expense obtain any official and third-party authorisations necessary for the execution of orders. If such authorisations are not obtained in time, the deadline for the provision of the service shall be extended accordingly.
5.2 If unforeseeable circumstances or circumstances independent of the parties’ intentions occur, such as all cases of force majeure, that prevent or delay compliance with the agreed delivery or completion deadline, the deadline shall in such event be postponed by the duration of these circumstances.
5.3 The circumstances specified in the above Sections 5.1 and 5.2 shall be documented in writing without delay by the contracting parties and delivered in writing to the other contracting party.
6 Protection of the Contractor’s intellectual property
6.1 The Client shall be obliged to ensure that the reports, expert opinions, organisational plans, draughts, drawings, calculations and the like prepared within the framework of the order by the Contractor shall only be used for the purposes of the order disclosed to the Contractor or objectively identifiable.
6.2 Subject to the provision of Section 6.3 and any other individual agreement in writing to the contrary, all rights (including such that are created on the occasion of the execution of the order), such as in particular intellectual property, ancillary copyright, know-how and adaptation rights, shall be retained by the Contractor. This shall apply in particular also to inventions developed by the Contractor and the associated know-how.
6.3 In the case of copyright and related rights concerning works and services by the Contractor, the Client, in the absence of an express individual agreement to the contrary, shall, upon complete payment of the fee owed, receive permission to use the work within the meaning of Sec. 24 Para. 1 sentence 1 of the Copyright Act of Austria (UrhRG). For the rest, the communication of the Contractor’s contractual services to a third party for use shall require the Contractor's written consent. In any event, this shall not establish the Contractor’s liability as against the third party.
7 Confidentiality obligation
7.1. The Contractor shall be obliged to maintain confidentiality with respect to all matters becoming known to it in connection with its activity for the Client unless the Client releases it from this obligation to maintain confidentiality or if such is in conflict with statutory obligations to disclose.
7.2 The Contractor undertakes in particular not to communicate design, material, process, plant and production data to third parties.
8 Remedy of defects and warranty
8.1 Claims to the remedying of a defect or the subsequent provision of missing elements shall be satisfied by the Contractor within a reasonable period of time. No claims to any damages resulting from delay shall be entertained.
8.2 The reversal of the burden of proof, i.e. the obligation on the part of the Contractor to prove that it was not at fault in the defect, shall be excluded.
8.3 A claim under the warranty shall require the Client to have notified the Contractor in writing of the defects occurring without delay.
9.1 The Contractor shall only be liable for losses, including consequential losses as a result of a defect, caused deliberately or with gross negligence up to the amount of the agreed fee. Liability for slight negligence, compensation for consequential losses and purely financial losses shall be excluded. In general no liability shall be assumed for lost profit.
9.2 If commercial data-processing programs are used for the provision of the service, no warranty or liability is assumed by the Contractor for consequential losses resulting from program errors or other software defects.
10.1 The Client shall not be entitled to retain or offset payments on the grounds of counterclaims.
10.2 Payments shall be effected in the agreed currency without any deduction to a paying agency of the Contractor within 14 days. Payment shall be deemed to be effected on the day on which the Contractor can dispose over it.
10.3 Additional works resulting from changes that are not attributable to the Contractor’s sphere and require a reworking or modification of individual elements of the order, in particular as a result of official requirements, amendments of the relevant regulations and legislation and as a consequence of changes to the Client's wishes, shall be charged in addition in accordance with the increased scope of performance.
11 Reminder and collection costs
In the event of payment default, 12 % default interest per annum shall be deemed to be agreed. The Client shall also refund the Contractor for any reminder costs incurred. In addition, all costs and expenses incurred by the Contractor as a result of the reminder or the collection of due payments (in particular the extrajudicial attorney costs according to the official scale of fees etc. necessary for a corresponding assertion of the rights) and all costs of the judicial and other assertion of the rights shall be refunded by the Client.
12 Prohibition on assignment
Claims against the Contractor shall not be assigned without the express written consent of the Contractor.
13 Client’s acceptance default and failure to participate
13.1 If the Client is in default with the acceptance of the works offered by the Contractor, this shall not affect the due date of the claim to payment. If the Client fails to comply with its obligation to inform or any other obligation to participate to which it is subject, the Contractor shall be entitled to terminate the contract without notice following the setting of a reasonable grace period of at least seven days.
13.2 Acceptance default and failure to participate on the part of the Client shall entitle the Contractor to the refund of the additional expenditure incurred by it as a result and of any losses caused even if the Contractor does not exercise its right to terminate.
14 Reservation of title
In the case of delivery and/or provision of objects capable of establishing property, the Contractor’s reservation of title is agreed until complete payment of the invoice amount plus any interest and costs.
15 Withdrawal from the contract
15.1 In the event that the Contractor is in default with a work, the Client shall only be entitled to withdraw from the contract after setting a reasonable grace period; the grace period shall be set by registered letter.
15.2 Unless more specific provisions are concluded, it shall be a precondition for the Client's withdrawal from the contract that the Contractor’s default with a work and/or a delivery is due to the gross fault of the Contractor and that the reasonable grace period set has expired without effect. Withdrawal shall be asserted by registered letter.
15.3 Irrespective of its other rights, the Contractor shall be entitled to withdraw from the contract
- if the execution of the work or the start or the continuation of the work is rendered impossible for reasons for which the Client is responsible or if such continues to be delayed despite the setting of a reasonable grace period,
- if doubts arise as to the Client’s solvency and if the Client, at the Contractor's request, neither effects payments in advance nor provides suitable collateral before performance of the work.
15.4 Withdrawal for the above reasons can also be declared with respect to a still outstanding part of the delivery or work.
15.5 If insolvency proceedings are commenced with respect to the assets of one of the contracting parties, or if an application for the commencement of insolvency proceedings is dismissed for lack of sufficient assets, the other contracting party shall be entitled to withdraw from the contract without setting a grace period.
15.6 Notwithstanding the Contractor’s claims to damages, in the event of withdrawal any works or part works already provided shall be taken into account and paid for. This shall also apply if the delivery or work has not yet been accepted by the Client and to preparatory work provided by the Contractor. In lieu of the aforesaid, the Contractor shall also be entitled to demand the return of objects already delivered.
15.7 Other consequences of withdrawal shall be excluded.
15.8 The right of withdrawal for both parties in the event that in the course of the execution of the order it becomes apparent that the subject matter of the order cannot be provided or effected.
16 Legal venue and place of performance
16.1 In the absence of a written agreement to the contrary, the place of performance shall be Leoben.
16.2 It is agreed that the legal venue for all disputes arising in connection with the contractual relationship shall be the court competent for such cases in Leoben.