I. General Provisions
Where designations are in the masculine or feminine form only, these shall apply equally to all genders. The German version is the authentic version and takes precedence over the English version in the event of contradictions.
1. Scope of application
These General Terms and Conditions of Purchase apply to all contracts between Österreich Wein Marketing GmbH as the Client (hereinafter referred to as the "Client") and enterprises under a contract to provide goods and services (hereinafter referred to as the "Contractor"). The Contractor and the Client are hereinafter jointly referred to as the "Contracting Parties".
2. Contract components
2.1. The contract is composed of
- the award
- Special Contractual Provisions, if any
- these General Terms and Conditions of Purchase
- the Contractor‘s offer
- schedules and supporting documents
2.2 In the event of conflicts between individual contract components, these shall apply as above in descending order. Contractor's General Terms and Conditions, if any, will not apply and will not become part of the Contract.
2.3. Contractual conditions include:
- General Provisions (Section I);
- Special Provisions governing orders for the supply of goods (Section II) and
- Special Provisions governing orders for the provision of services (Section III).
The Special Provisions are supplementary to the General Provisions in the context of the respective order types. In the event of contradictions, the Special Provisions shall take precedence over the General Provisions.
3. Conclusion of contract
3.1. The Contractor will not be reimbursed for the costs of preparing a cost estimate, quotation or similar. These shall be prepared by the Contractor free of charge. Cost estimates shall be binding.
3.2. Offers from Contractors will not be tacitly or implicitly accepted by the Client, but shall require a written order (contract award). The contract shall enter into force upon awarding.
3.3. These General Terms and Conditions of Purchase will form an integral part of every contract awarded, even if no express reference is made to them.
3.4. General Terms and Conditions of the Contractor or other diverging terms and conditions shall only apply if the Client expressly confirms their applicability.
4. Contact person
4.1. The Client will be represented by the contact person expressly named in the order. Changes will be possible at any time and will be announced in writing. Unless expressly stated otherwise on a case-by-case basis, the Client's contact person will not be authorised to make changes or additions to the contract on behalf of the Client.
4.2. The Contractor shall designate a contact person no later than 2 days after receipt of the contract award. This contact person shall be authorised and empowered to represent the Contractor in all contractual matters. All statements made by the contact person shall be attributed to the sphere of control of the Contractor.
5. Consortium
5.1. If the contract was entered into with a consortium, the members of the consortium shall be jointly and severally liable to the Client. If one or more members withdraw from the consortium, the contract for the goods/services still to be provided shall remain in force with the remaining members of the consortium. The withdrawal of a member from the consortium shall constitute good cause entitling the Client to early termination of the contract with immediate effect. Unless otherwise agreed, the withdrawing members of the consortium shall be jointly and severally liable to the Client for the fulfilment of the contract and for all damage arising from the withdrawal.
5.2. The consortium shall appoint a contact person no later than 2 days after receipt of the contract award. This contact person shall be authorised and empowered to represent the consortium in all contractual matters. All statements made by the contact person shall be attributed to the sphere of control of the consortium.
6. Subcontractors
6.1. The Contractor shall be obliged to disclose the contact details and authorised representatives of the subcontractors used in the execution of the order within 14 days of conclusion of the contract.
The Contractor shall notify the Client without delay of any changes in this regard during the execution of the order.
6.2. The Contractor shall notify the Client in writing of any intended change of subcontractor or any intended involvement of a subcontractor not disclosed in the offer, enclosing all evidence required to verify the suitability of the subcontractor concerned. Such subcontractors may only be brought in for the provision of goods/services with the prior consent of the Client. The Client's consent, as well as any refusal, shall be communicated without delay and may only be refused for objective reasons. The Client's consent shall be deemed to have been given if the Client has not rejected the subcontractor within three weeks of receipt of the notification. If the required documents are not attached to the notification in full, the Client shall inform the Contractor without delay and request the Contractor to submit the outstanding documents. Such request shall suspend the above period until the required documents have been submitted in full. The related declarations of commitment must be attached.
7. Material changes in the Contractor’s enterprise
The Client must be notified in writing without delay of any changes at the Contractor’s, a consortium member’s and/or a subcontractor’s end which are material for the contractual relationship (e.g. change of company name, contact details, representatives in charge, institution of reorganisation proceedings, institution of insolvency proceedings, change of authorisation, etc.).
8. Consideration
8.1. Any and all goods/services provided by the Contractor and any ancillary services as may be required shall be deemed covered by the consideration agreed upon. Unless otherwise agreed upon on a case-by-case basis, travel costs or other expenses will not be subject to separate consideration.
8.2. Unless otherwise agreed upon on a case-by-case basis, the prices offered are fixed prices valid for the entire term of the contract.
8.3. Invoices must comply with the provisions of Section 11 of the Austrian Turnover Tax Act (UStG 1994). Invoices shall be in PDF format, to be sent by e-mail to "rechnungen@oesterreichwein.at” stating the order number. No other e-mail addresses shall be added in the CC or BCC line.
8.4. Each invoice shall also be accompanied by all documents required for review. If documents essential for review of the invoice are missing or if the invoice submitted is so defective that its review is unreasonable, the invoice shall be deemed not to have been issued until the defects have been remedied. Defective invoices will be returned by the Client and shall be resubmitted by the Contractor after remedying the defect/s. The payment term shall not commence until the date on which the corrected invoice is received by the Client.
8.5. Invoices will be due for payment within 30 days of proper invoicing.
8.6. If the Client is in default of payment, the statutory default interest shall apply at the rate applicable to B2B transactions.
9. Obligation to notify
The Contractor shall be obliged to record all circumstances and occurrences of significance for the fulfilment of the contract and invoicing and to notify the Client of these in writing without delay.
10. Duty to inspect and warn
10.1. The Contractor shall be obliged to inspect, without delay, all documents, execution documents, instructions, resources and/or preliminary work provided by the Client. The Contractor shall also convince itself of the proper condition of work provided upstream before rendering its own services.
10.2. As an expert pursuant to Section 1299 of the Austrian Civil Code (ABGB), the Contractor shall be obliged to notify the Client without delay in writing of any defects and concerns regarding suitability and/or feasibility and to provide written information and suggestions for remedying or improvement. If the Contractor fails to inspect and/or warn the Client, it shall be liable for the consequences of such failure to inspect and/or warn.
11. Disruption to the provision of services
11.1. If the Contractor identifies an imminent or existing disruption to the provision of services, including without being limited to, obstruction by the Client, the Contractor shall report this in writing without delay and, if necessary, notify an adjustment on the merits to the period of performance and/or additional costs.
11.2. The Contractor shall be obliged to notify additional costs on the merits in terms of amount no later than within 7 days of notification. The Contractor shall present and substantiate the calculation of additional costs in a comprehensible manner and disclose the related calculation bases to the Client at request, thus enabling the Client to review the appropriateness of the additional cost claimed.
11.3. If notification on the merits and / or the amount is not made in a timely manner, the Contractor shall lose all entitlement to claims based on a disruption to the provision of services.
12. Contract amendments
12.1. Amendments and supplements to the contract shall be made in writing to be effective.
12.2. The Client shall be entitled to demand amendments to the scope of services, the circumstances of service provision and additional services relating the subject matter of the contract.
The Contractor shall fulfill reasonable change requests of the Client. In the event of change or additional requests by the Client, the Contractor shall submit an appropriate additional offer based on the calculation of the original offer within 7 days. The Contractor shall present and substantiate the calculation in a comprehensible manner and disclose the relevant calculation bases at the request of the Client so that the Client can verify the appropriateness of the price. Changes to services or additional services shall only be remunerated if they have been ordered in writing by the Client. Changes to services or additional services provided without consent shall not be remunerated.
12.3. The Client shall be entitled to extend each contract, which represents a continuing obligation for a fixed term, by a further year by means of a unilateral declaration no later than one month before expiry; such extension shall be possible by a maximum of three further years in total.
13. Default
13.1. The Contractor shall be obliged to adhere to any and all deadlines and periods set.
13.2. If the Contractor fails to provide the services agreed upon at the agreed time, at the agreed place and in the agreed manner, the Contractor shall be deemed to be in default. If a deadline is extended in writing by mutual consent, this shall not be deemed a case of default.
13.3 The Client shall be entitled to claim damages irrespective of the degree of fault of the Contractor.
14. Force majeure
14.1. In the event of force majeure, i.e. unforeseeable and unavoidable events which are not attributable to the sphere of control of the Contractor, this shall not be deemed a case of default.
14.2. The Contractor shall notify the Client of a force majeure event in writing without delay.
14.3. The Contractor shall make all reasonable efforts to avoid or minimise the effects of a force majeure event. Unless the contract was terminated by the Client, the Contractor shall, without delay, continue to fulfil the contract after the event has ended.
15. Warranty
15.1. All of the Contractor's services are subject to warranty. The Contractor shall be obliged to provide all goods/services free from material defects and defects of title. The Contractor warrants that the goods/services can be used in accordance with the nature of the transaction and the agreement made and that they have the contractually agreed and objectively required properties.
15.2. The warranty period will be 2 years from acceptance. In the event of defects materialising within the warranty period it will be assumed that these were present at the time of handover. The burden of proof that no defect existed at the time of handover shall be on the Contractor.
15.3. The Client's rights arising from the statute of limitations and warranty claims shall expire three months after expiry of the warranty period.
15.4. The assertion of defects within the scope of the warranty will not require the Client to give notice of defects to the Contractor. Statutory provisions on the obligation to give notice of defects, including Sections 377 and 378 of the Austrian Commercial Code (UGB) do not apply unless this is mandatory by law.
15.5. The Client shall be entitled to demand, at its discretion, improvement, replacement, a price reduction or avoidance of the contract.
15.6. In the event of goods with digital elements and of digital services, the Contractor shall be obliged to provide information regarding the need for updates.
16. Liability
16.1. Unless otherwise agreed upon, the Contractor's liability shall be subject to the relevant statutory provisions. The Contractor shall be liable for any and all direct and indirect damage for which it is responsible, including any and all consequential damage of defects.
16.2. Except for events of personal injury and within the scope of application of the Product Liability Act (PHG), the Client shall only be liable in the event of proven gross negligence or intent. The burden of the proof of gross negligence or intent shall be on the Contractor.
17. Property rights
The Contractor guarantees that it has all necessary rights of use and that its goods/services do not infringe any protected rights of third parties, including, without being limited to, intellectual property rights (such as copyright, utility model rights, patent rights, etc.) and that no rights of third parties are infringed. The Contractor shall hold the Client harmless and indemnified in this respect. This shall also include, without limitation, Client’s legal expenses.
18. Early termination
18.1. In the event of fixed-term continuing obligations, the Contractor will not be entitled to ordinary termination. In the event of continuing obligations for an indefinite term, the Contractor waives the right to terminate the contract for 48 months from the date of award. After expiry of such period, the Contractor shall be entitled to terminate the contract as per the end of each calendar month subject to six months' notice.
18.2. In the case of continuing obligations, the Client shall be entitled to terminate the contract as per the end of each calendar month, subject to three months’ notice.
18.3. The Contractor shall be entitled to terminate the contract with immediate effect for good cause. Good cause shall be deemed to include, without being limited to, the following:
a) the Client continues to breach material obligations under this contract, such as payment of consideration when due, despite a written reminder and a period of grace of 30 days;
b) an insolvency petition against Client's assets has been rejected due to a lack of assets to cover the costs or such insolvency proceedings have been terminated due to a lack of assets to cover the costs;
c) insolvency proceedings have been instituted against the Client's assets and statutory provisions do not prohibit termination, or
d) there are circumstances which obviously make proper fulfilment permanently impossible, provided that the Client is responsible for such circumstances.
18.4. The Client shall be entitled to terminate the contract for good cause without setting a period of grace. Good cause shall be deemed to include, without being limited to, the following:
a) the Contractor continues to breaches provisions of this contract despite a written reminder and with a reasonable grace period of at least 10 days;
b) an insolvency petition against the Contractor's assets has been rejected for lack of assets to cover costs or such insolvency proceedings have been terminated for lack of assets to cover costs;
c) insolvency proceedings have been instituted against the Contractor's assets and statutory provisions do not prohibit termination;
d) there are circumstances which obviously make proper fulfilment impossible, either permanently or at least for more than 2 months;
e) the Contractor has taken actions to fraudulently cause damage to the Client, in particular if, for this purpose, it has entered into agreements with other contractors which are detrimental, or contro bonos mores or contrary to the principle of competition;
f) the Contractor has directly or indirectly promised or granted, contro bonos mores, benefits to executive bodies of the Client involved in the conclusion or performance of the contract or has directly threatened or inflicted disadvantages;
g) the Contractor no longer fulfils the specified minimum requirements for suitability, in particular if there are reasons for exclusion;
h) the Contractor has infringed legal provisions, including, without being limited to, provisions of tax, labour or social law, or
i) the Contractor has breached its confidentiality obligations.
19. Confidentiality
19.1. The Contractor, including its subcontractors and upstream suppliers, shall treat as strictly confidential any and all information and documents of which it becomes aware in the course of its cooperation with the Client and which are not intended for disclosure to third parties, irrespective of how they become known. The Contractor shall impose the same confidentiality obligation on employees and third parties who receive such information or documents for the performance of work under this contract. The confidentiality obligation shall survive the term of this contract. However, this does not apply to information and documents in the public domain.
19.2. The Contractor, including its subcontractors and upstream suppliers, shall comply with all legal provisions applicable in Austria in respect of data protection, such as the GDPR and the Data Protection Act. The Contractor shall hold the Client harmless and indemnified in the event of any breach and shall bear any and all costs arising therefrom.
20. Compliance with labour, social and environmental legislation
In the provision of goods/services, the Contractor shall comply with labour and social legislation applicable in Austria, the relevant collective agreements and the environmental legislation applicable in Austria.
21. Special support to the Client
The Contractor undertakes to support the Client in the fulfilment of its obligations with regard to official proceedings and budgetary control, including, without being limited to, audits by the Court of Auditors or by certified public accountants, by providing the necessary documents within a reasonable period of time and answering enquiries from auditing bodies; such support shall be provided without separate consideration even after the end of the fulfilment of the contract.
22. Prohibition of set-off / Prohibition of assignment / Prohibition of retention of title
22.1. The Contractor shall not be entitled to set-off unless the Contractor's claims have been recognised by the Client or established by a court of law.
22.2. The Contractor shall not be entitled to assign any claims against the Client from or in connection with the contract to third parties in whole or in part.
22.3. The Contractor's rights of retention shall not apply unless they are mandatory by law. In the event of disputes, the Contractor shall not be authorised to suspend the services incumbent upon it.
23. Final provisions
23.1. Unless expressly agreed otherwise, the contractual language is German. All documents relating to the contractual relationship shall be submitted in German.
23.2. If a provision of the contract is or becomes invalid, the validity of the remainder of the contract shall be unaffected. The invalid provision shall be replaced by a provision which is closest to the intention of the contracting parties as far as this is legally possible.
23.3. The Client's registered office shall be the place of performance.
23.4. The contract and all mutual rights and obligations as well as claims between the Contractor and the Client derived therefrom shall be governed by Austrian law, to the exclusion of the conflict of laws provisions of private international law and to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
23.5. In all legal disputes arising between the Contractor and the Client in connection with this contractual relationship, including disputes concerning its validity, breach, termination and nullity, the court having subject-matter jurisdiction for the Client's registered office shall be the forum.
II. Special provisions governing orders for the supply of goods
1. Scope of this section
1.1. This section applies to all supply contracts within the meaning of the Austrian Federal Procurement Act (BVergG 2018), including ancillary work such as laying or installation.
1.2. The provisions of this section supplement those of Section I "General Provisions". In the event of any contradictions, the provisions of this section shall take precedence over those of Section I "General Provisions".
2. Delivery
2.1. Unless otherwise agreed upon on a case-by-case basis, the delivery periods and delivery dates shall apply as stated by the Client in the order or in the contract. Delivery shall be made to the Client's premises at the Contractor's expense and risk. The Contractor shall bear any and all costs of transport, insurance, packaging and other required ancillary costs and fees incurred in connection with the delivery. For deliveries from abroad, the delivery clause "DDP" Client's premises shall be deemed agreed in accordance with INCOTERMS 2020.
2.2 The Contractor shall be obliged to provide the Client with a dispatch note stating the order/contract number and order date as well as the quantity and units upon dispatch at the latest.
2.3. Deliveries must be made to the Client's premises on working days (excluding public holidays and Saturdays) between 09:00 and 16:00, and between 09:00 and 12:00 only on Fridays. Consignments sent cash on delivery will not be accepted. The Contractor shall be obliged to obtain advance information about any local restrictions (in particular regarding height and weight).
2.4. All deliveries must be accompanied by a delivery note, which must contain at least the following information:
- Order / Contract number and order date
- Item number, quantity and unit
- Note regarding partial delivery, if applicable
2.5. All deliveries shall be properly packaged by the Contractor. Any statutory packaging and labelling obligations shall be complied with. Any costs arising from damage to the consignment due to inadequate packaging shall in any event be borne by the Contractor.
3. Ancillary services
3.1. Any and all ancillary services needed for the timely, contractually compliant and defect-free performance of the contract in accordance with the relevant official and statutory provisions and requirements applicable as well as with the state of the art shall be included in the agreed price. These shall include, without being limited to, services, expenses and costs in connection with delivery (transport costs, insurance, customs, etc.), in connection with technical documentation (such as and in particular assembly and operating instructions in German), in connection with upstream suppliers and subcontractors as well as any and all fees, charges and taxes.
3.2. If licences are required for the proper use of the Contractor's goods/services, these shall be procured by the Contractor for the benefit of the Client. Such licence agreements with third parties must be issued in the name of the Client. This shall also apply to licences for standard software products.
4. Acceptance and transfer of risk
4.1. After receipt of the goods, the Client shall check for completeness and any visible defects (acceptance) within a reasonable period of time.
4.2. If installation, set-up, commissioning, assembly and the like have been agreed upon, acceptance by the Client shall only take place after receipt of written notification of readiness for acceptance by the Contractor.
4.3. If defects are identified during acceptance, the Client shall notify the Contractor accordingly. The Contractor shall remedy defects without delay and free of charge. Once defects have been remedied, the Contractor shall be obliged to notify the Client again in writing of readiness for acceptance.
4.4. Client’s declaration of acceptance will not constitute a waiver of any claims (such as claims under warranty or liability). Transfer of risk shall take place after delivery and acceptance by the Client.
5. Retention of title
Retention of title by the Contractor or its suppliers shall be excluded and will not apply.
6. Price reductions
General price reductions occurring between the date of conclusion of the contract and the date of delivery shall be passed on to the Client.
7. Invoicing
Invoicing will be permitted after complete delivery and acceptance by the Client.
III. Special provisions governing orders for the provision of services
1. Scope of this section
1.1. This section applies to all service contracts within the meaning of the Austrian Federal Procurement Act (BVergG 2018).
1.2. The provisions of this section supplement those of Section I "General Provisions". In the event of any contradictions, the provisions of this section shall take precedence over those of Section I "General Provisions".
2. Employees of the Contractor
2.1. The Contractor shall be obliged to only deploy persons who have the qualifications required to fulfil the contract. The Contractor shall deploy a sufficient number of qualified persons to fulfil the contract in order to ensure that services are provided on time and in accordance with the contract.
2.2. If the Contractor deploys several persons to provide the contractual services, it shall clearly assign their responsibilities and disclose these to the Client at request.
2.3. The Contractor shall hold the Client harmless and indemnified in respect of taxes, duties, fees and social security contributions imposed the Client for the Contractor's, subcontractors' or upstream suppliers' personnel, unless such payments are due to acts or omissions on the part of the Client. The Contractor shall be responsible for any work permits as may be required by the personnel deployed (by the Contractor, subcontractors or upstream suppliers) and such personnel shall exclusively be subject to the personal and professional right of instruction of the Contractor, subcontractors or upstream suppliers.
3. Services
3.1. The Contractor shall be obliged to provide all services on time, in full and in the agreed or objectively expected quality. The Contractor shall also be responsible for the provision of services in accordance with the contract if the Client provides or approves documents such as plans, drawings and calculations in compliance with any applicable statutory provisions.
3.2. The services are to be provided in accordance with the current state of the art.
3.3. Consideration for services provided without a written order from the Client shall only be due if such services are subsequently recognised in writing by the Client.
4. Ancillary services
4.1. Any and all ancillary services needed for the timely, contractually compliant, defect-free provision of services in accordance with the relevant official and statutory provisions and requirements applicable as well as with the state of the art shall be included in the agreed price. These shall include, without being limited to, services, expenses and costs in connection with documentation (in German), in connection with upstream suppliers and subcontractors as well as all any and all fees, charges and taxes.
4.2. If licences are required for the proper use of the Contractor's services, these shall be procured by the Contractor for the benefit of the Client. Such licence agreements with third parties must be issued in the name of the Client. This shall also apply to licences for standard software.
5. Acceptance
5.1. After notification by the Contractor, the Client shall inspect the service for completeness and any visible defects (acceptance) within a reasonable period of time.
5.2. Client’s declaration of acceptance will not constitute a waiver of any claims (such as claims under warranty or liability). Use in operations does not constitute an implicit declaration of acceptance.
5.3. The Client shall be entitled to refuse acceptance of services in the event of defects.
6. Rights of use
6.1. Ownership of work results (e.g. documents) shall pass to the Client upon acceptance.
6.2. Unless otherwise agreed on a case-by-case basis, the Client shall acquire a non-exclusive right, unlimited in terms of location, time and content, to use, reproduce, edit or otherwise modify all works and work results created for the Client under this contract in all currently known and future types of use and to execute works or services in accordance with the contract - whether in their original, edited or modified form. The Client shall be entitled to transfer the rights of use granted in whole or in part to third parties or to grant sub-utilisation rights.
6.3. For any standard software components used, the Client will acquire the non-exclusive right to use these to the agreed extent, including the right to make the necessary copies and backups for archiving purposes. If such software is a third-party software component subject to licence, the relevant licence conditions shall apply. The Contractor shall ensure and guarantee that only such third-party standard software components subject to licence are used which permit use for the agreed purposes.
6.4. The Contractor shall ensure and guarantee that the Client is granted all rights necessary for utilisation to the extent agreed upon. In particular, if the Contractor utilises the goods or services of third parties or cooperates with third parties in the production of contractual works, the Contractor shall ensure that the Client is provided with or granted all rights necessary for the use of the contractual works to the extent agreed upon.
6.5. The Contractor guarantees that the services or works it has provided are not encumbered with third-party rights as would prevent utilisation to the agreed extent and/or that these do not infringe any third-party rights whatsoever. If claims are asserted against the Client due to an infringement of third-party rights in any form whatsoever, the Contractor shall hold the Client harmless and indemnified and cover all costs incurred as a result.
7. Invoicing
7.1. Unless otherwise agreed on a case-by-case basis, invoicing shall be on a time and material basis. The Contractor shall be obliged to submit a monthly activity report for the previous month, stating the activities per day, the type of activities, the duration of the activities in increments of minutes and the persons deployed. In the event of invoicing on a time and material basis, monthly invoicing in arrears will be permitted.
7.2. If a lump sum has been agreed upon, invoicing will be is permissible after acceptance unless otherwise agreed.
8. Instructions for suspension
The Client shall be entitled to instruct the Contractor, in advance and in writing, to suspend the provision of services. If instructions are given for such suspension, any agreed deadlines shall be extended accordingly. If such suspension upon Client’s instructions does not exceed a period of 3 months, no claims arising from or in connection with such suspension beyond the extension of the deadline shall be due to the Contractor.
9. Cancellation
If the Contractor owes the Client the production of a work, the Client shall be entitled to cancel parts of or the entire work prior to acceptance. The application of Section 1168 of the Austrian Civil Code (ABGB) shall be excluded. The Contractor shall not be entitled to any claims, including, without being limited to, loss of profit, compensation for damages or loss of wages or consideration. If parts of a service are cancelled, the Contractor's claim to consideration for the cancelled parts of the service shall also laps