general tender and contract terms and conditions for construction ...

SPAR ÖSTERREICHISCHE WARENHANDELS-AG 

GENERAL TENDER AND CONTRACT TERMS AND CONDITIONS 

FOR CONSTRUCTION AND AUXILIARY WORK 

VERSION 01/2009 

Effective as of 19.02.2009 

Definitions 

Employer 

Contractor (Tenderer) 

Party inviting tenders: 

The planner commissioned by the Employer to 

prepare the invitations to tender or the construction 

department commissioned by the Employer to 

implement the tender or the employee 

commissioned by the Employer to implement the 

tender 

Site Supervisors: persons commissioned by the 

Employer to supervise the Contractor’s work at the 

site. 

Site manager: the person commissioned by the 

Contractor to supervise and implement the 

Contractor’s work. 

Specs.: Specifications 

Construction work and services: 

Apart from classic construction work this term also 

includes the delivery, installation etc. of technical 

equipment, instruments, other services or parts 

including corresponding work. 

The net final account sum is the final account sum 

after taxes and deductions and before cash discount. 

1. Tender terms and conditions 

1.1. The tender documents shall be signed on 

behalf of the company by a duly authorized person 

in the spaces provided. If the documents are not 

signed by a duly authorized person or if individual 

documents are unsigned or not signed by a duly 

authorized person, the Tenderer shall remain bound 

by its tender proposal, provided that the tender 

letter is signed by a person duly authorized by the 

Tenderer. Changes to the specs are not permitted 

and shall be deemed to be not performed. If the 

Tenderer wishes to offer an alternative proposal 

differing from the tender conditions, he may do so in 

a separate alternative proposal. In case of 

differences between the original specs and the EDP 

printout the original specs shall prevail. Proposals 

shall be submitted in German. Prices shall be quoted 

in euro, any additional expenses (e.g. tarriffs, import 

taxes, costs for work permits etc.) shall be included 

into the price, import/export licences shall be 

obtained by the Tenderer at its own expense. Unless 

otherwise defined in the tender documents, the 

prices quoted are firm prices and are not subject to 

a price escalator clause. 

The information materials enclosed with the tender 

documents, regarding e.g. soil conditions, 

groundwater levels, technical properties and data 

related to the building physics of the planned 

construction materials, the position of fixtures or any 

other circumstances pertaining to the execution of 

the work, shall serve for information purposes only. 

The Employer and the party inviting tenders shall 

not be held liable for the correctness of these 

information materials. The Tenderer shall be 

obligated to examine all documents. If it turns out 

during the execution of the work that the 

information material was incorrect or incomplete, the 

Tenderer shall be obligated to execute the work in a 

technically correct manner and to bear any 

additional costs incurred in this connection. In 

addition, the Tenderer shall be obligated to submit in 

writing any objections to the design or construction 

work specified in the tender documents by 

submission of the proposal at the latest. If such 

objections are not submitted in due form or after the 

deadline, the Tenderer shall be deemed to regard 

the above-mentioned tender documents or drawings 

as suitable and sufficient for executing the work in 

an appropriate and professional manner. It must not 

raise any subsequent objections and shall be fully 

liable as skilled professional. 

The Tenderer shall be entitled to propose equivalent 

special constructions and offer them separately in an 

annex in the sense of these terms and conditions. 

The Tenderer shall guarantee for the technical 

correctness of these special constructions. In case 

the proposed special constructions require design 

changes, the corresponding costs shall be paid by 

the Tenderer, if the order is placed. 

1.2. The persons appointed by the Tenderer to 

participate in the tender negotiations shall be 

authorized to make amendments and additions to 

the proposal and to conclude a contract for work and 

services. Corresponding restrictions of the power of 

attorney shall be invalid. The tender documents shall 

form the basis for the preparation and submission of 

the tender proposal, and any documents to be 

submitted with the proposal must be originals. In 

agreement with the party inviting tenders prices 

quoted in the specs can also be submitted on data 

storage media, In this case a flawless EDP printout 

including the individual items of the specs with all 

blank spaces filled in by the Tenderer, products 

used, quantities, unit prices and total prices of the 

individual items, must be submitted. The Tenderer 

shall guarantee the equivalence of the products 

proposed and must be able to provide corresponding 

proof upon request. Otherwise the product proposed 

in the specs must be executed without premium. In 

case blank spaces have not been filled in by the 

Tenderer, the product must be constructed in 

accordance with specs. If the specs do not contain 

sufficient information, the Employer shall be entitled 

to determine the product or form of construction. 

1.3. Before submitting its proposal, the Tenderer 

shall visit and inspect the site with regard to the kind 

and scope of the work to be performed. With the 

submission of the tender proposal, the Tenderer 

confirms that it has obtained sufficient information 

about the localities, the construction site, access to 

the site, and other specific facts, in particular any 

public or private easements, pipeline wayleaves 

(water, drains, electricity, gas, district heating, cable 

TV, telephone etc.) and any wayleaves or other 

obstructions to be able to determine the scope of 

work and services adequately. For this reason the 

Tenderer must not raise any claims on account of 

ignorance of local (factual and legal) conditions. 

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SPAR General Tender and Contract Terms and Conditions for Building and Auxiliary Work 

1.4. The Tenderer shall not be entitled to any 

reimbursement for the preparation or revision of the 

tender proposal or any expenses incurred in this 

connection, not even if the Employer refrains from 

implementing the construction project. The Employer 

shall decide at its own absolute discretion which, if 

any, proposal to accept. The Tenderers shall have no 

right to the acceptance of their tender. 

1.5. By signing the proposal the Tenderer 

declares that the proposal is based on the Tenderer’s 

own price calculation only, that the prices quoted 

have not been adjusted and arranged with other 

competitors, that no agreements have been made 

with other companies which are detrimental to the 

Employer or infringe free competition and that the 

Tenderer has not entered into any formal or informal 

agreements with other companies or acts in such a 

way that an act prohibited under competition law 

has been performed. Upon the Employer’s request 

the Tenderer shall be obligated to prove that this is 

not the case. In case of a violation of this rule the 

Tenderer shall be obligated to pay a contract penalty 

in the amount of 10% of the contract price. 

1.6. If the proposal is submitted by a 

consortium, the members of the consortium shall be 

liable to the Employer jointly and severally for all 

obligations under the proposal and in case of 

acceptance of the propsal for all obligations under 

the corresponding contract for work and services. 

Any securities provided by any member of the 

consortium shall be expressly valid for claims against 

the other members of the consortium or the 

consortium as a whole. The proposal shall be signed 

by all consortium members, and each consortium 

member shall be expressly entitled to represent the 

other members. On submitting the proposal, the 

consortium shall be entitled to nominate a person 

authorized to act on behalf the consortium and to 

deal with the Employer regarding both technical and 

commercial matters. Upon request the consortium 

shall be obligated to verify that it has taken out a 

commercial liability insurance with adequate 

coverage (minimum amount EUR 800,000.00). This 

insurance shall remain valid for the entire term of 

the contract. 

1.7. The period of validity shall be six months 

from the closing date. The Tenderer shall be bound 

by its bid for this period of time. If upon the request 

of the Employer or the party inviting the tenders 

alterations and additions are made to the proposal, 

which are not to be remunerated without separate 

agreement, this does not mean that the proposal 

originally submitted (original proposal) has been 

rejected. Any such alterations or additions made 

upon the request of the Employer or the party 

inviting the tenders are alternative proposals to 

which the Tenderer shall be bound until the expiry of 

the period of validity. Within the period of validity 

the Employer shall be entitled to accept the original 

offer or the alternative offer. The Employer shall also 

be entitled to freely combine at its own discretion 

individual items from different alternative proposals 

with each other or with the original proposal, thus 

determining a new, binding contract price, unless 

this is expressly excluded by the Tenderer in a clear 

and unambiguous statement on the cover sheet of 

the alternative offer. The proposal shall be accepted 

by a letter of acceptance issued by the Employer or 

the party inviting tenders. The date of shipment shall 

be decisive as to the deadline of accepting the 

proposal. If the conditions for accepting the proposal 

differ from the conditions specified in the proposal, 

the Tenderer shall notify the Employer of this fact in 

writing within 8 days. If the Employer receives no 

such written notification within 8 days the contract 

for work and services shall be deemed to be 

concluded under the conditions specified in the letter 

of acceptance. If a corresponding notification is sent 

within eight days, the Tenderer shall remain bound 

by its proposal for an additional period of two weeks 

(from the Employer’ receipt of the notification). The 

letter of acceptance shall be signed by the person 

duly authorized to act on behalf of the Tenderer and 

returned to the Employer within one week of receipt. 

The contents of the letter of acceptance shall be 

deemed to be accepted by the Tenderer, and the 

contract for work and services has been concluded in 

accordance with the contents of the letter of 

acceptance, if the Tenderer starts or continues with 

the execution of the work. 

The Tenderer shall waive the right to assert that it 

has made an error in the preparation of the proposal 

and to withdraw the proposal for this reason or 

dispute the contract for work and services on 

account of error in case the proposal is accepted. 

Upon request the Tenderer shall be obligated to 

submit within three days of the request all sheets 

and documents from which the price calculation can 

be deduced (in particular so-called “K-Blätter” or 

calculation sheets in accordance with Austrian 

standard ÖNORM B2061 as well as basic principles of 

calculation such as total surcharge – general 

overhead, interest during construction, imputed risk, 

profit margin, total material surcharge / external 

labour surcharge and gross average wage price). 

2. Contract terms and conditions 

2.1 The contract terms and conditions shall 

apply to all work and services to be performed by 

the Contractor in connection with the construction 

project. The Contractor’s general terms and 

conditions shall not apply. The contract terms and 

conditions shall also apply to follow-up orders, 

unless otherwise specified in the follow-up orders. 

The Contractor acknowledges that alterations and 

additions to the work specified in the contract may 

arise during implementation of the construction 

project and detailed design. The Employer shall be 

entitled to make such alterations and additions, and 

the Contractor shall be obligated to perform the 

work accordingly. 

2.2 The Contractor shall be obligated to execute 

all work in a competent and professional manner in 

accordance with the design drawings and 

information provided by the Employer and examined 

by the Contractor, the planners and designers 

commissioned by the Employer and the instructions 

of the site supervisors. The Contractor shall be fully 

liable to the Employer, planners and designers 

commissioned by the Employer and to the 

authorities for the work it has executed, particularly 

with regard to structural engineering, functionality, 

fire protection engineering, building physics etc.. The 

building shell (especially formwork and concreting) 

must be executed in accordance with the architect’s 

execution drawings. In case of discrepancies with 

other drawings the Contractor shall be obligated to 

notify the Employer in due time to avoid any delays. 

2.3 The Contractor shall be obligated to 

carefully examine all execution drawings and 

instructions provided to him, any materials made 

available to him by the Employer, preliminary work 

performed by other companies as well as the 

prevailing soil conditions at the site etc, and it shall 

notify the Employer in writing of any concerns 

irrespective of article 1.1. and 1.3 of these terms 

and conditions no later than two weeks before the 

beginning of the construction work and to make 

proposals as to the technically correct / suitable 

design and execution. If the Contractor fails to carry 

out an examination and notify the Employer in 

writing, it shall be obligated to pay for any additional 

expenses or disadvantages in connection with the 

above conditions and be held liable for any damage 

incurred by this. The Contractor shall have a 

comprehensive duty to examine and warn that 

excludes any joint liability of the Employer. 

Every contractor shall be obligated to take actual 

measurements in due time before starting the 

construction work and to request and examine all 

drawings required for the work to be performed. 

The Employer and its authorized representative shall 

be notified in writing of any discrepancies between 

drawings and actual measurements before the 

beginning of the construction work. Any work 

previously performed by other companies shall be 

examined in time and self responsibly. If the 

Contractor fails to carry out an examination the 

preceding article shall apply correspondingly. 

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2.4 Unless the Contractor raises objections 

against any information materials / drawings / 

execution instructions included in the tender 

documents on submitting the proposal, any 

objections raised at a later time do not entitle the 

Contractor to claim additional compensation. The 

Contractor shall be obligated to execute the work at 

its own expense in a technically correct way. If a 

lump sum price has been agreed the Contractor shall 

not be entitled to demand reimbursement of 

additional expenses; if a settlement based on unit 

prices has been agreed, the Contractor shall be 

entitled to invoice only those quantities (volumes) 

which would have resulted from the execution 

drawings on which the tender had been based or, 

respectively, the items included in the specs, even if 

changed or additional work is necessary for the 

technically correct execution. Additional work of any 

kind is acknowledged and reimbursed only if the 

Employer has placed a corresponding written order. 

Verbally placed orders shall be ineffective. 

2.5 Access roads from public roads to the 

building site and transportation routes necessary for 

the implementation of the building project for all 

companies working at the construction site shall be 

constructed, safeguarded for the duration of 

construction works, if necessary relocated, and 

maintained by the company commissioned with the 

construction of the building shell. The company 

constructing the building shell shall also be 

responsible for any traffic management required on 

public roads. The company constructing the building 

shell shall also be obligated to fulfil all obligations of 

the Employer or landowner under public law with 

regard to road maintenance and safety measures, 

de-icing and snow clearance alongside public roads 

and to indemnify the principal and landowner against 

any liability in this connection. If requested by the 

Employer to allow it to continue to run its business 

or if necessary for the execution of the work or on 

account of rules imposed by public authorities, the 

transportation routes must be changed accordingly 

and the site facilities relocated – even repeatedly, if 

necessary; the above regulations shall apply 

accordingly. All measures specified in article 2.5. 

shall not be reimbursed separately. 

Each contractor shall obtain before the beginning of 

its work and at its own expense any permissions that 

may be required for the use of public or private 

property. The level reference marker shall be 

executed without separate remuneration by the 

company constructing the building shell in 

accordance with the requirements of the site 

supervisor, using V2A bolts. This level reference 

marker must be maintained by the company 

constructing the building shell for the entire duration 

of finishing works. The companies and craftsmen 

executing the finishing works shall adhere to the 

reference markers made by the company 

constructing the building shell and transfer them to 

the required positions. 

2.6 The Contractor shall prepare at its own 

expense all execution drawings, documents and 

statistical calculations required for the execution of 

its work, unless they have to be provided by the 

Employer in accordance with written agreements. 

All execution drawings prepared by the Contractor 

shall be submitted to the Employer for approval not 

later than two weeks before the execution of the 

corresponding work. The release of the documents 

by the Employer does not exempt the Contractor 

from its liability for their technical correctness. The 

release of the execution drawings by the Employer 

only means that the Employer has approved the 

architectural design. Any documents provided by the 

Employer shall be examined before execution in 

accordance with article 2.3. of this document. 

2.7 The Contractor shall prepare all data 

required for the execution of its work that concern 

preliminary work performed by other companies, 

such as clearances, apertures and special provisions 

for installations or building services (utilities) well in 

time and submit them to the site supervisor in 

writing. If the Contractor fails to make a 

corresponding notification, it shall reimburse to the 

Employer any additional expenses incurred as a 

result of this omission. 

2.8 The Contractor shall be solely responsible 

for the correctness of its execution drawings, 

documents and calculations. The Contractor shall be 

obligated to convince itself before the beginning and 

during the execution of the work, if the preliminary 

work required for the work to be performed by the 

Contractor has been executed according to schedule; 

in case of discrepancies it shall inform the Employer 

in writing in a timely manner. 

2.9 Upon the Employer’s request the Contractor 

shall be obligated to provide free of charge samples 

of the materials and instruments used for the 

execution of the work. This concerns all assemblies, 

materials, surface qualities, mounting parts in 

different forms, qualities and colours, all 

instruments, fixtures and fittings and visible joints. 

Unless another product / another type with type 

specification was specified in the corresponding 

blank provided in the tender documents, the product 

exemplarily specified in the corresponding item must 

be used. If no indications were made in the 

corresponding blanks to be filled in by the Tenderer, 

the materials selected by the Employer shall be 

utilized. 

2.10 The Contractor shall provide all test 

certificates, quality inspection reports and 

verifications required on the territory of the 

construction site for all work executed to ensure that 

the local authorities will grant all required licences 

and concessions. The Employer shall be entitled to 

demand additional quality inspections of substances, 

building materials or instruments / products used. 

The expenses for such certificates and quality 

inspections shall be paid by the Contractor. The 

same applies to documents requested by public 

authorities or public utility companies. The 

Contractor shall be obligated to obtain for the 

Employer all licences and certificates from public 

authorities which specifically concern its assemblies 

(e.g. permissions for elevators or escalators) at its 

own expense. 

The Contractor shall guarantee that it fulfils all legal 

and actual requirements for the performance of the 

construction work (e.g. requirements under trade 

law etc.) and shall be obligated to submit 

corresponding proof to the Employer at any time 

upon request. The Contractor shall be obligated to 

prepare logs and reports of the construction work 

performed on a daily basis and to submit them to 

the Employer or site supervisor at any time upon 

request. 

The company commissioned with the execution of 

the building shell shall assume the responsibilities of 

project manager and site coordinator in accordance 

with the Act on Coordination of Construction Works 

(BauKG) without remuneration and shall indemnify 

the Employer against any liability in this connection. 

If a general contractor is commissioned, this general 

contractor shall take over the above tasks. 

2.11 For the execution of the work the 

Contractor shall use only the best, newest and 

flawless materials and employ only well-trained and 

reliable professional staff executing the work in a 

professional manner in accordance with generally 

accepted technical standards and codes of practice 

and state-of-the-art technology. All deliveries and 

work and services performed shall at least meet the 

corresponding Austrian standards ÖNORM valid at 

the time of execution. 

The Contractor shall coordinate its work and the 

way, circumstances and time of execution with the 

other companies working at the site to avoid mutual 

obstructions; Obstructions usually arising during the 

implementation of building projects shall not entitle 

the Contractor to additional claims or an extension of 

time. 

The Contractor shall be obligated to participate in 



the coordination meetings set by the site supervisor, 

also after execution of the work, without 

reimbursement or to assign a representative who is 

informed and authorized to act and make decisions 

on behalf of the Contractor. The Contractor shall be 

subject to the decisional authority of the project 

manager and site coordinator appointed in 

accordance with the Act on Coordination of 

Construction Works (BauKG). The appointment of a 

site coordinator by the Employer does not release 

the Contractor from compliance with applicable 

protective regulations. The Employer shall be 

entitled to supervise the process of work performed 

at the site or the production at the Contractor’s 

plant. 

The Contractor shall be obligated to take adequate 

measures at its own expense for the protection of its 

work from damage caused by other professionals. 

Until the formal acceptance of the work by the 

Employer the Contractor shall bear all risks for its 

work. 

The Contractor shall guarantee the existence of a 

valid commercial liability insurance in the amount of 

at least EUR 800.000,- for damage to persons and 

property for the entire duration of the construction 

work and to verify it by submission of the insurance 

policy and a confirmation of insurance premium 

payment. 

2.12 In cooperation with the site supervisor and 

other contractors working at the site, the Contractor 

shall be obligated to prepare a site facility layout 

scheme which is based on a minimization of the area 

required for the site facilities. In case of necessity 

the Contractor shall be obligated to relocate site 

facilities at the site supervisor’s request. The 

installation and connection of the utilities required 

for operating the construction site (especially 

electricity, water, telephone etc.) and general 

facilities and equipment (building site fencing, 

signboards, site lighting etc.) shall be arranged by 

the company constructing the building shell. Before 

starting work, all other Contractors working at the 

building site have to reach an agreement with the 

company constructing the building shell regarding 

electricity and water consumption, the use of 

telephones and signboards and the corresponding 

payment before starting their work; arrangements 

must also be made by the company constructing the 

building shell regarding the use of the access road to 

the building site. Any claims made to the Employer 

in connection with the above paragraph shall be 

excluded. Each contractor shall be responsible for 

installing and maintaining its work area lighting and 

shall include the costs into its lumpsum or unit 

prices. 

The company constructing the building shell shall be 

obligated to protect the construction - without 

special remuneration, repeatedly and for the entire 

duration of construction work - from intrusion of 

precipitation and to remove precipitation that has 

entered the building to make the performance of 

finishing works possible. Every contractor shall be 

obligated to take adequate measures allowing it to 

perform its work during bad weather conditions (in 

particular construction work during winter) and to 

take the necessary precautions for the protection of 

its work from climatic influence (water, snow, frost, 

storm etc.) and actions of third parties (vandalism, 

theft etc.) 

The Contractor shall notify the Employer and site 

supervisor immediately after placement of the order 

of the name of a person authorized to represent the 

company in technical and commercial matters, who 

is represented by the local site manager. A person 

participating in coordination talks, meetings etc. on 

behalf of the Contractor shall be deemed to be an 

authorized representative. If the authorized person 

is permanently prevented from fulfilling its duties on 

account of death or resignation, the Contractor shall 

be obligated to nominate a new authorized person 

without delay. Until a new appointment has been 

made it shall be agreed that the site manager or 

foreman working at the site shall be solely 

responsible for making binding decisions on behalf 

and for account of the Contractor. The company 

constructing the building shell shall be obligated to 

nominate a site manager who is responsible for the 

construction work and authorized to act on behalf of 

the Contractor without limitations in dealings with 

competent authorities regarding security matters, 

and it shall be obligated to make all the required 

statements to the authorities. All site managers and 

representatives of all contractors shall be equipped 

with mobile phones at the Contractors’ expense. 

3. Prices and settlements 

Contract with unit prices and scope of work 

compensated with unit prices 

3.1.1. Unit prices shall be firm prices valid until 

two months after faultless performance of the entire 

contract work and shall be divided into wage and 

other shares. The unit prices quoted shall apply to 

the entire building project without making any 

differences between individual building units, floor 

levels, floor plans, construction depth, room sizes 

and time of execution, including unexpected delays 

in execution, unless otherwise expressly specified in 

the specs. The necessary auxiliary and 

complementary works shall also be compensated 

with the unit prices so that the sum total of all work 

items contained in the specs will correspond to a 

construction complying with generally accepted 

technical standards and codes of practice and 

meeting regulatory requirements. 

In case of technical plants the unit prices must be 

quoted in such a way that the sum total of all items 

of the specs result in an installed, regulated, 

accepted and ready-to-operate plant with all 

necessary accessories, even if the latter are not 

specifically listed in the specs, which can be put into 

operation, including documentation, operating and 

user manuals, as-built drawings, official licences and 

training, if required also repeatedly. 

In case of deliveries only, unit prices include the 

shipment to the place of installation at the site and 

the place specified by the site supervisor for 

intermediate storage within the building. If the 

supplier has made no arrangements for the 

transportation of the goods within the building site / 

the building, the Employer shall be entitled to 

commission someone with the transportation at the 

supplier’s expense. The Employer shall be entitled to 

demand partial shipments of the delivery quantities. 

3.1.2. The unit prices also include compensation 

for all work and services to be performed in 

accordance with these contract terms and conditions 

or which are part of the complete and faultless 

execution of the work in accordance with generally 

accepted codes of practice, including in particular 

also the as-built drawings, documentation etc. 

specified in article 3.1.1.. 

3.1.3. An extended or reduced scope of individual 

work or delivery items do not entitle the Contractor 

to increase unit prices or demand any additional 

compensation whatsoever. The Employer shall be 

entitled also after conclusion or during execution of 

the contract to cancel the performance of individual 

items of work either partially or completely or to 

have them executed in a different way without 

consequences as to the costs. The Employer shall 

also be entitled to remove individual items from the 

specs / scope of supply or reduce them without 

changing the unit prices. The Contractor shall 

examine the building ground during the execution of 

the construction work and take all measures 

necessary for the successul execution of the work. If 

it turns out that excess quantities in addition to 

those listed in the specs or the performance of 

additional or changed work is necessary for the 

successful construction of the building, article 3.1.5 

shall apply accordingly. If the Contractor does not 

notify the Employer of this and does not prepare a 

supplementary proposal, it shall lose its claim for 

additional compensation. 

3.1.4. If it turns out during the performance of 

the work that the quantities of individual items are 

exceeded by more than 5%, the Contractor shall 

notify the Employer of this circumstance without 

delay, providing detailed information in writing on 

the individual items concerned. The invoicing of 



additional quantities in partial invoices does not 

constitute a written notification. Additional quantities 

may be executed only after written approval of the 

excess quantities by the Employer. If the Contractor 

fails to notify the Employer, it loses any claims for 

the compensation of excess quantities. 

3.1.5. If changes in the execution drawings 

require the performance of additional work which 

was not foreseeable from the descriptions of the 

work in the specs, the drawings on which the tender 

was based and official notices (foreseeable changes 

shall not be compensated with the unit prices as 

auxiliary work), the price for the additional work 

shall be determined by the Contractor on the basis 

of the price formation of the unit prices quoted in 

the proposal, proven and submitted to the Employer 

in the form of a supplementary proposal. In addition 

the basic calculation principles necessary for 

assessing the supplementary proposal (in particular 

total surcharge, interest during construction, 

imputed risk, profit margin, total material surcharge 

/ external labour surcharge and gross average wage 

price etc.) shall be provided to the Employer without 

request. The Employer shall examine the 

supplementary proposal, determining its price on the 

basis of the above-mentioned criteria and 

commission the additional work. If the Contractor 

fails to submit a supplementary proposal before 

execution of the work or if it executes the additional 

work before the Employer has placed the order, it 

has lost its claim for additional compensation. The 

remuneration determined by the Employer as 

mentioned above for additional work performed may 

be contested by the Contractor only, if the 

remuneration specified by the Employer is overtly 

inadequate. The same applies to project extensions. 

In this case the Contractor shall also be obligated to 

perform the additional work necessitated by the 

project extension at the price determined in 

accordance with the above principles. 

3.2. Contract with lump sum price and scope of 

work and service compensated with lump sum price: 

3.2.1. The lump sum price agreed shall constitute 

a guaranteed lump sum price in accordance with 

article 1170 a Austrian Civil Code (ABGB), shall be 

understood as price for the complete work faultlessly 

executed in accordance with generally accepted 

technical standards and codes of practice and with 

these general tender and contract terms and 

conditions. The lump sum price shall compensate all 

work and services to be performed in accordance 

with the general contract terms and conditions, 

which are part of a complete and faultless execution 

of the building in accordance with generaly accepted 

codes of practice, including in particular as-built 

drawings, documentation, operating and 

maintenance manuals and – upon request – 

trainings. Unless otherwise specified in the letter of 

acceptance the lump sum price shall also comprise 

additional expenses and remuneration for additional 

or altered work performed as a result of worse site 

conditions than expected. The lump sum price shall 

also include changes, additions and more detailed 

specs of the tender project and the additional work 

and expenses for the execution. The agreed lump 

sum price shall remain unchanged, if excess and 

additional work becomes necessary as a result of 

changes in the execution drawings, unless the 

changes in the drawings are considered as a major 

project change; e.g. the lump sum price is not 

changed on account of alterations to the room layout 

and a subsequent increase in the number of partition 

walls, doors, windows and outlets, or on account of 

the relocation of stairways, elevators etc. . 

3.2.2. If major changes in the project result in 

additional construction-related expenses for the 

Contractor exceeding 3 per cent of the contract sum, 

article 3.1.5 shall apply accordingly. 

If work included in the lump sum price need not be 

executed as a result of project changes, the lump 

sum price shall be reduced by the corresponding 

reduction in the scope of work; in case of doubt the 

reduction in the scope of work shall be determined 

on the basis of the – otherwise irrelevant – unit 

prices of the specs of the original proposal. In case 

of deliveries only, the lump sum price shall include 

the delivery to the place of installation at the 

building site and the place specified by the site 

supervisor for intermediate storage within the 

building. If the supplier has made no arrangements 

for the transportation of the goods within the 

building site / the building, the Employer shall be 

entitled to commission someone with the 

transportation at the Contractor’s expense. The 

Employer shall be entitled to demand partial 

shipments of the delivery quantities. 

3.3. Cost-plus work 

Cost-plus work is work required for the execution of 

the order, but not included in the price as specified 

in article 3.1. and 3.2.. The Employer shall be 

obligated to prepare separate and clearly marked 

reports on cost-plus work performed; corresponding 

entries into the construction log book are invalid. 

Cost-plus work may be executed only after written 

approval by the Employer or its authorized 

representative. Cost-plus work is specially ordered 

by the site supervisor in separate cost-plus reports. 

If cost-plus reports are not signed by the site 

supervisor the corresponding work shall be deemed 

to be not performed and thus cannot be 

remunerated irrespective of its usual 

reimbursement. The cost-plus hours actually 

performed shall be recorded by the Contractor, and 

the original records shall be submitted to the site 

supervisor for examination and approval on a daily 

basis. Cost-plus work shall be settled in separate 

partial invoices at the end of each calendar month. 

Article 5 shall apply accordingly with regard to 

payment. The sum total of the partial invoices for 

cost-plus work shall be included in the final account. 

The following basic principles shall apply to the 

settlement of cost-plus hours. Foreman hours are 

reimbursed only if ordered; only hours during which 

actual work is performed will be recognized; work 

breaks, bad weather times, expenses for the 

procurement of equipment, travel time or time spent 

for the preparation of the place of work are not 

recognized. The hourly rates charged for cost-plus 

work shall include the required supervision and the 

use and maintenance of the necessary equipment 

and tools. Only construction machinery, 

jackhammers and pumps may be invoiced 

separately. If the work performed is inadequate, the 

Employer shall be entitled to make deductions. 

Invoices must specify the number of cost-plus hours 

performed and the corresponding work executed. 

The Employer shall reserve the right to examine at a 

later time, if the work verified and performed is not 

comprised in the work and services included in the 

lump sum price or the items of the specs. 

4. Time Schedule and Deadlines 

4.1. The beginning of the construction work, 

intermediate deadlines for specific construction 

milestones and the completion of the construction 

work are specified in the letter of acceptance and 

the construction time schedule. If the letter of 

acceptance does not specify deadlines, but terms for 

the completion of works or, respectively, the 

fulfilment of specific milestones, the terms start with 

the beginning of the relevant construction work by 

the Contractor. The day agreed with or specified by 

the site supervisor for the beginning of construction 

work shall be deemed to be the first working day. If 

no such date has been specified the day of the first 

daily log of construction shall apply. Bad weather 

days or other non-working days shall have no 

influence on the above terms and deadlines. 

4.2. The Contractor shall undertake to prepare a 

time schedule in cooperation with the Employer, to 

regularly update this time schedule and notify the 

Employer accordingly in a way ensuring receipt. If 

no agreement can be reached the Contractor shall 

be obligated to accept a construction time schedule 

specified by the Employer which corresponds to the 

overall time schedule on which the tender was based 

and which allows a coordinated implementation of all 

assemblies by third parties within the overall time 

schedule. 

4.3. Upon the Employer’s request the Contractor 



shall be obligated to prepare a complete and detailed 

time schedule and revise it repeatedly in accordance 

with the actual progress of the construction work; if 

the Contractor refuses to collaborate in the 

preparation of the detailed time schedule in a timely 

manner, the Employer shall be entitled to specify the 

detailed time schedule with binding effect for the 

Contractor, also with regard to the consequences of 

delays in the execution. The Employer shall be 

entitled to demand changes of the time schedule and 

the execution of specific work ahead of schedule 

without additional reimbursement, if this is essential 

for the progress of the entire project. 

4.4. The Contractor shall bear the risk for 

impediments as a result of extraordinary events or 

work performed under difficult working conditions. 

Such impediments and work performed under 

difficult working conditions such as bad weather, 

frost, cold temperatures etc. do not extend the 

construction period or defer intermediate or final 

deadlines. Irrespective of this the Contractor shall be 

obligated to notify the Employer immediately in 

writing about any delays in the construction work, 

specifying the corresponding reasons. 

4.5. If intermediate deadlines or the final 

deadline or terms for the fulfilment of specific 

milestones specified by the Employer in the letter of 

acceptance or in the above contract provisions are 

exceeded, the Contractor shall have to pay a 

contract penalty. Unless otherwise agreed in the 

letter of acceptance, the following contract penalties 

shall be paid: 

a) If agreed deadlines are exceeded, for each 

calendar day of delay, in per cent of the contract 

sum (known at the time of delay) (incl. VAT) for 

contract sums 

- up to € 10,000.-- 1 % 

- up to € 100,000.-- 0.5 % 

- up to € 1.000,000.-- 0.10 % 

- up to € 1.000,000.-- 0.05 % 

b) If the contractually agreed final construction 

deadline is exceeded, 2.5% of the final account sum 

plus the corresponding percentage specified in lit. a) 

above for each calendar day of delay. 

If the Contractor does not submit construction 

drawings or samples in accordance with art. 2.9 by 

the agreed deadline despite a one-time written 

request, the Employer shall be entitled to have these 

drawings prepared by a third party at the 

Contractor’s expense, and the Contractor shall be 

entitled to the payment of a contract penalty in the 

amount of 1.0% of the net costs of production. 

The contract penalty shall be payable irrespective of 

whether the Employer has suffered damage as a 

result of the delay or not or whether the Contractor 

is responsible for the delay/missed deadline or not. 

The Employer reserves the right to make an 

additional claim for damages, if the actual damage 

suffered exceeds the contract penalty. The work is 

considered sucessfully completed, if the work is 

completed free of defects and if the Employer has 

been notified in writing thereof. Contract penalties 

can be deducted from partial payments or shall be 

paid to the Employer upon its request without raising 

counter claims. 

5. Partial payments 

5.1. Partial paymnents are made by the 

Employer on condition that the letter of acceptance 

has been signed without reservation by the 

Contractor’s authorized representative and that the 

Contractor has submitted the required performance 

bond to the Employer. Unless otherwise agreed in 

the letter of acceptance, partial payments comprise 

the work and services performed during one 

calender month. Irrespective of the - if necessary 

extended - construction period, partial invoices can 

be made out if expressly agreed in writing and only 

to the maximum number of partial invoices specified 

in the letter of acceptance. 

Partial payments are effected only to a maximum 

amount of 80% of the total contract sum, if the 

partial invoice meets the requirements of the 

applicable sales tax law and the documents required 

for examining the partial invoice (jointly examined 

measurement sheets signed by the site supervisor, 

drawings, proof of delivery and work performed etc.) 

have been submitted to the Employer together with 

the partial invoice. Examination, payment and cash 

discount periods shall not start before receipt of all 

documents required for partial invoices. One original 

of the partial invoice plus corresponding documents 

shall be submitted directly to the Employer by the 

tenth day of each calender month; two copies of the 

partial invoice plus corresponding documents shall 

be submitted by the same date to the site 

supervisor. For partial invoices received by the 

Employer or site supervisor after the 10 th day of the 

relevant calendar month, the period specified in 

article 5.2. below starts only on the 10th day of the 

following calendar month. 

The submission of a proper invoice in accordance 

with the terms of this contract and the applicable 

legislation is the prerequisite for the payment period 

to start. 

5.2. Unless otherwise agreed in the letter of 

acceptance, 

- 10% of the amount of the partial invoice shall be 

retained for coverage by the Employer 

- partial invoices submitted with all the required 

documents shall be examined within two weeks 

after the deadline for the submission of invoices 

(10th day of each calendar month), 

- payments of partial invoices shall be effected net 

within 45 days after the end of the examination 

period and with 3% cash discount within 30 days 

after the end of the examination period. 

5.3. If partial payments to be made in 

accordance with the progress of the construction 

work or a payment schedule have been agreed in 

case of lump sum contract, the above provisions 

shall apply accordingly, and partial invoices for the 

agreed payments shall be made out. Instead of 

measurement sheets the Contractor shall verify that 

at the end of the month preceding the submission of 

an invoice the progress of the construction work 

scheduled for that month has been achieved. If the 

progress required according to the time schedule has 

not been achieved that partial invoice shall be 

deemed to be submitted only on the 10th day of the 

month following the month in which the 

corresponding progress of the construction work has 

been achieved. The coverage retention shall be 

deducted also from partial invoices based on agreed 

partial payments or payment schedules. 

5.4. Payments shall be effected by means of 

bank transfer to the Contractor’s account or by 

issuing a cheque. The day on which the Employer 

has instructed its bank to transfer the money or - in 

case of payment by cheque - the day the cheque has 

been forwarded to the Contractor shall be decisive 

for timeliness of payment. The payment of partial 

invoices by the Employer does not mean that the 

Contractor’s work has been approved or accepted by 

the Employer with regard to quality or quantity. 

Claims for structural damage repairs shall be 

invoiced by the Contractor separately and no later 

than two weeks after performance; otherwise the 

Contractor shall lose its claims. 

5.5. Cash discounts may be deducted from all 

payments effected within the cash discount period in 

accordance with lit. d) irrespective of whether parts 

of the invoice amount have not been paid completely 

for justified or unjustified reasons. The agreed 

deductions and cash discounts shall also apply to 

selective items, additions, subsequent proposals, 

cash-plus work and partial invoices. 

6. Final account 

6.1. The final account shall be submitted 

within 120 days after completion of the work. All 

documents and verifications required for the 

examination of the invoice shall be enclosed with the 

final account (e.g. article 2.10., 11.11., 9.13.). 

Unless otherwise agreed in the letter of acceptance, 

the period of examination shall be 60 days and the 



payment shall be effected after the end of the 

examination period net within 45 days and with 3% 

cash discount within 30 days. In addition, articles 

5.1. to 5.5. shall apply accordingly; the coverage 

retention shall be replaced by a 5% liability retention 

of the sum total for the duration of the warranty 

period plus three months. In case of defects the 

period of payment and cash discount period shall 

start to run after removal of all defects. If the 

Contractor does not submit the final account despite 

a reminder and grace period, the Employer shall be 

entitled, but not obligated, to have the final account 

prepared by a third party at the Contractor’s 

expense. The submission of a proper invoice in 

accordance with the terms of this contract and the 

applicable legislation is the prerequisite for the 

payment period to start. 

6.2. The Employer and its affiliated companies 

shall be entitled to withhold receivables and claims 

due to the Contractor or its affiliated companies 

from the Employer or its affiliated companies, 

without interest until the Contractor or its affiliated 

company has fulfiled these receivables or claims 

(also including imperfect obligations or warranty 

claims, if the warranty period has already expired 

but the claim has been raised within the warranty 

period). The Contractor shall guarantee that its 

affiliated companies shall recognize this right of 

retention of the Employer and its affiliated 

companies. In case the Contractor’s affiliated 

companies do not recognize this right of retention, 

the Contractor shall undertake to indemnify the 

Employer and its affiliated companies against any 

claims; this means in particular that the Contractor 

shall reimburse to the Employer or its affiliated 

company in case of defeat in a lawsuit all costs and 

disadvantages incurred by the Employer or its 

affiliated company as a result of the fact that the 

Contractor’s affiliated company has not recognized 

the Employer’s right of retention. The Contractor 

further undertakes to become a joint and several codebtor 

of all liabilities due to the Employer from the 

Contractor’s affiliated companies. (A company 

affiliated to the Contractor or the Employer is a 

company affiliated to the Contractor or Employer by 

a direct or indirect participation at the time of 

placing the order or of exercising the right of 

retention or at the time the claim arises). 

7. Preliminary assessment and site 

inspection, formal acceptance, warranty, final 

warranty inspection 

7.1 The Employer can set a date for a 

preliminary assessment and site inspection (PA/SI) 

before or on the date of completion. During the 

PA/SI the degree of completion is determined and 

defects are identified by the Employer. Minutes of 

the PA/SI shall be prepared. The PA/SI does not 

constitute an acceptance, but only serves to 

determine the state of the work. Any deadlines 

specified in the minutes of the PA/SI for the repair of 

defects or completion of outstanding work are no 

indication that the contractually agreed date of 

completion has been extended or that the Employer 

waives the contract penalty. 

7.2. The formal acceptance of the 

Contractor’s work shall be carried out at the 

Contractor’s request on completion of the entire 

building project. A certificate of acceptance is 

prepared in which the formal acceptance is 

confirmed and any existing defects are listed. A 

formal acceptance without the Employer’s written 

confirmation shall not be permissible. The start of 

utilization does not constitute a formal acceptance. 

Before the Contractor formally hands over the site to 

the Employer, a final cleaning must be carried out; if 

necessary the cleaning must be repeated before the 

entire project is formally handed over to the 

Employer. No later than two weeks before formal 

acceptance the Contractor shall submit to the 

Employer all as-built drawings (on paper and data 

carrier), operating manuals, certificates, test log 

books, maintenance instructions, official notices, 

reports etc. in three copies. Without these 

documents no formal acceptance is possible. 

7.3. Building services (HAVCR) plants and 

equipment and operational systems, plants and 

installations, including EDP systems, shall be put into 

operation for the site inspection; documentation, 

maintenance and operating instructions shall be 

handed over during site inspection and the staff of 

the Employer and user shall be trained accordingly. 

7.4. Until formal acceptance of the work the 

Contractor shall bear all risks and responsibilities 

related to its work and for its materials stored at the 

site. The Contractor shall provide a complete set of 

wear parts free of charge for building services 

(HAVCR equipment). 

7.5. The warranty period shall start with the 

formal acceptance of the entire building project. If 

defects are identified during formal acceptance, the 

warranty period for the entire work executed by the 

Contractor starts with the moment the Contractor 

has repaired the defects specified in the certificate of 

acceptance and notified the Employer in writing. 

7.6. Three months before expiry of the 

warranty period the Contractor shall request the 

Employer in writing to carry out a final warranty 

inspection. The Employer shall set a date for the 

final warranty inspection. The warranty period shall 

expire three months after receipt of the request for 

final warranty inspection at the earliest. At the final 

warranty inspection the Contractor’s work is reexamined 

and any existing defects or new defects 

identified after formal acceptance are recorded. The 

defects identified at the final warranty inspection 

shall be repaired as soon as possible. For defects 

repaired during the warranty period or identified at 

the final warranty inspection a new three-year or 

seven-year warranty period shall start. 

7.7. The Contractor shall guarantee the 

completion of its work without defects and in a 

timely manner and in compliance with all contractual 

provisions and legal regulations. It shall further 

guarantee that the work has been executed in 

accordance with generally accepted technical 

standards and codes of practice and correspond to 

the state-of-the-art. The warranty period for tiling 

and sealing works and constructions made of watertight 

concrete shall be seven years, the warranty 

period for all other works shall be three years, 

unless otherwise specified in the letter of 

acceptance. 

7.8. Defects arising during the warranty 

period and any damage caused by such defects shall 

be repaired by the Contractor free of charge within 

the period of time set by the Employer without 

prejudicing any other rights the Employer may have. 

In case of urgency the Employer shall be entitled to 

take measures itself to repair defects or prevent the 

consequences of defects without prior notification 

and at the Contractor’s expense. If the Contractor 

does not repair the defects despite setting of a 

period of grace, the Employer shall have the right to 

have the defects and the damage caused by the 

defects repaired by third parties at the Contractor’s 

expense. The Employer shall also be entitled to 

demand an adequate price reduction instead of a 

repair. 

7.9. The Contractor shall be obligated to 

reimburse to the Employer the expenditure of time 

of the Employer’s own staff or the person 

commissioned by the Employer with the 

identification fo defects, the supervision of repairs 

and the inspection of the adequacy of repairs carried 

out, at 1.5 times the applicable hourly rates for civil 

engineering services. 

7.10. The liability retention shall be withheld 

for the duration of the warranty period. If agreed in 

the letter of acceptance that the liability retention 

can be replaced by a bank guarantee, the liability 

retention amount shall be paid within thirty days 

after receipt of the bank guarantee which shall be 

valid for the term of the warranty period plus three 



months. The term of payment for the liability 

retention to be paid out on account of the 

submission of a bank guarantee shall start with the 

removal of all defects specified in the certificate of 

acceptance. 

7.11. If notices of defects are issued or warranty 

claims are raised before the end of the warranty 

period, corresponding warranty claims can be 

brought before a court also after expiry of the 

warranty period. 

8. Withdrawal, cancellation, downtime 

periods 

8.1. The Employer shall be entitled to 

withdraw from the contract 

- if insolvency proceedings have been opened 

against the Contractor’s assets or if the application 

to open insolvency proceedings has been refused for 

lack of assets. 

- if the Contractor is in delay with the performance 

of its work and has not made up for the delay 

despite a reminder, 

- in the event of circumstances justifying the 

assumption that the Contractor will not or 

inadequately fulfil its obligations. Such circumstances 

prevail in particular, if the Contractor continues to 

execute its work inadequately or contrary to the 

contract despite warnings, uses building materials 

rejected by the site supervisor or repeatedly 

misses intermediate deadlines, thereby preventing 

other professionals working at the site from 

continuing their work. 

- if the Contractor has not performed contractually 

agreed work or failed to submit documents or 

verifications (e.g. performance bond or countersigned 

letter of acceptance) despite a reminder and 

setting of an adequate period of grace. If the 

Employer withdraws from the contract, the 

Contractor shall not be entitled to any further 

payments; the Contractor shall be obligated to 

reimburse to the Employer additional expenses 

calculated in the following way: payments already 

made to the Contractor plus costs for the execution 

of the work by third parties minus reimbursement 

that would have been due to the Contractor, if it had 

completed the work as contractually agreed. In 

addition the Contractor shall be obligated to pay a 

contract penalty in the amount of 5 per cent of the 

net contract sum specified in the letter of 

acceptance. Article 4.5. shall apply accordingly. 

8.2. In the event that the Contractor does 

not meet a contractual obligation (including the 

removal of defects) or does not meet it in a timely 

manner despite the setting of an adequate period of 

grace, or if immediate action is necessary to avoid 

damage or meet intermediate or final deadlines, the 

Employer shall be entitled to commission third 

parties with the substitute performance of work or 

deliveries not carried out by the Contractor without 

prejudicing the other contractual obligations. 

8.3. In any case any additional expenses 

incurred as a result of substitute performance, in 

particular any differences in price between the 

Contractor’s gross contract sum and the price at 

which the work is actually completed shall be 

reimbursed by the Contractor. The Employer shall 

not be obligated to issue a tender for the work 

executed by substitute performance. The Employer 

may decide at its own absolute discretion, whether 

to commission substitute performances at lump sum 

or unit prices or on a cash-plus basis. The objection 

that the substitute performance has been 

commissioned at an inadequately high price, shall 

not be permissible, if the additional expenses of the 

substitute performance do not exceed 50% of the 

prices agreed with the Contractor. 

8.4. The Employer shall be entitled to cancel 

the contractual work before or during its execution. 

The work which has been performed at the site until 

the time of cancellation shall be reimbursed at the 

unit prices agreed for the work in case of unit-price 

contracts; in case of a lump sum contract they shall 

be reimbursed with the amount corresponding to the 

value of the partial work which remains at the site. 

Unit prices for work or services calculated for the 

entire duration of the contract (e.g. site facilities or 

provision of utilities) shall be reimbursed with an 

amount corresponding to the period of time they 

have been used; the same shall apply, if the 

Employer withdraws from the contract in accordance 

with article 8.1. of this contract without any reason 

justifying the withdrawal. The Contractor shall not be 

entitled to make any additional claims. 

8.5. The Employer shall have the right to 

impose downtimes with a 10-day notification period. 

The Employer shall notify the Contractor of the 

expected duration of the downtime. The Contractor 

shall discontinue the work, protect the work already 

performed and take adequate safety measures at 

the site. The work shall be resumed within 10 days 

after the Employer’s notification. The duration of 

imposed downtimes extend agreed terms and 

deadlines (see article 4) accordingly. If the 

downtime imposed by the Employer exceeds 6 

months the Contractor shall be entitled to withdraw 

from the contract; in this event article 8.4. shall 

apply accordingly. 

8.6. Within 10 days of receipt of the letter of 

acceptance the Contractor shall submit a bank 

guarantee securing the fulfilment of the contract 

(performance bond) in the amount of at least 15% 

of the gross contract sum, with the text specified by 

the Employer and valid until the formal acceptance 

of the work in accordance with article 7.2. plus three 

months. Performance and retention bonds as well as 

the retention withheld in cash shall serve as security 

for the Employer’s claims of any kind arising from 

the contract, the non-performance of the contract or 

from claims due to the Employer arising from the 

withdrawal from the contract; in particular they also 

provide security for claims in accordance with 

sections 21 and 22 Austrian Bankruptcy Act and 

sections 20 a, 20 b and 20 d Austrian Federal Tax 

Code (AO). The Employer shall also be entitled to 

use the performance and retention bonds to satisfy 

other claims against the contractor or claims of the 

Employer’s affiliated companies assigned to the 

Employer, even if such claims have another legal 

basis outside the scope of this contract. After 

conclusion of the contract the Employer shall be 

entitled to demand additional security for work still 

to be performed to a maximum amount of one fifth 

of the agreed gross contract sum. In case of 

contracts to be executed within a period of three 

months, up to two fifths may be demanded. The 

costs for the security, which may be in the form of 

cash or bank guarantee at the Employer’s choice, 

and the lump sum manipulation fee in the amount of 

EUR 300.—plus VAT, which is due from the Employer 

on receipt of the invoice, shall be reimbursed by the 

Contractor. The security shall be submitted within 

two weeks after the corresponding notice by the 

Employer. If the Contractor does not or not fully 

meet its obligation to provide the above security and 

reimburse the corresponding costs, the Employer 

shall be entitled to refuse any payment and 

withdraw from the contract without setting a period 

of grace; article 8.1. shall apply accordingly. 

If the Contractor exercises its right in accordance 

with sections 1170 b Austrian Civil Code, the 

deadline for performance pursuant to section 1170 b 

par. 2 Austrian Civil Code is specified by the 

Contractor as eight weeks from the confirmed 

receipt of the corresponding notice. The Employer 

may choose the form of security and be entitled to a 

reimbursement of expenses in the amount of EUR 

300.00 plus VAT which is payable on receipt of the 

invoice issued by the Employer. 

8.7. With the final account the Contractor 

shall assert all claims from the building project, or 

otherwise any additional claims will be forfeited. 

With the submission of the final account the 

Contractor declares that it shall raise no further 

claims from the entire building project. The 

Contractor may raise objections to the corrected 

final account within two weeks after receipt of the 

examined final account or, in case payment has 

already been affected, within two weeks after receipt 

of payment, stating reasons for the objection. 



Objections shall be submitted in writing with 

cofirmation of receipt. If the objection is not 

submitted in time or in due form, the corrected final 

account shall be deemed to be acknowledged, and 

any other claims for remuneration exceeding the 

amount specified in the corrected final account shall 

be forfeited. If the final account is submitted subject 

to additional claims the final account will be returned 

to the Contractor without examination. The 

Contractor shall re-submit the final account to the 

Employer without reservations. The examination 

period shall start only with the submission of a final 

account without reservations. 

9. General provisions 

9.1. The Contractor shall be entitled to assign 

claims against the Employer to third parties on 

condition that the Contractor informs the Employer 

at least 12 weeks in advance about the intended 

assignment of claims, or otherwise articles 8.1. and 

4.5 b) shall apply correspondingly. The above 

notification and the notice of assignment itself shall 

be sent to the site supervisor and the Employer’s 

management by way of registered letter to the 

address of the company’s headquarters, whereby 

the date of postal delivery shall apply. Notifications 

of any other kind, in particular notes on invoices or 

similar forms shall be excluded. A written 

confirmation from the assignee, in which the 

assignee acknowledges the order plus auxiliary 

agreements, in particular these General Tender and 

Contract Terms and Conditions fully and with effect 

for itself, shall be enclosed with the Contractor’s 

notification. 

9.2. In case of assignment the parties agree 

a service charge (payable for the increased 

administrative efforts) in the amount of one ‰ of 

the claim assigned or to be assigned plus VAT, the 

minimum charge being EUR 300.00 plus VAT. This 

service charge can be set off at the Employer’s 

option against any of the Contractor’s receivables 

from the date of receipt of the Contractor’s 

notification of the planned assignment or the notice 

of assignment itself. Irrespective of and in addition 

to the above provisions the Contractor expressly 

acknowledges that assignments of claims in the 

above sense may burden the credit liabilities of the 

Employer or of subsidiaries of SPAR group. In the 

event of an assignment of claims the Contractor 

shall therefore be obligated to compensate any 

financial disadvantages incurred by the Employer or 

other subsidiaries of SPAR group in this connection, 

whereby a corresponding written confirmation issued 

by the credit institutions involved shall be expressly 

agreed to constitute sufficient proof of the 

disadvantages incurred. The burden of proof for the 

non-existence of such damage shall lie with the 

supplier. 

9.3. If the Contractor is appointed general 

contractor by the Employer, it assumes the position 

of site coordinator and all responsibilities connected 

with the supervision of adherence to contractual 

obligations. The Contractor shall nominate a physical 

person who will be responsible for coordination tasks 

and for ensuring that the written declarations and 

notices required in accordance with the current 

legislation are submitted. If the implementation of 

the work assigned to the Contractor requires the use 

of adjacent sites, the Contractor shall be responsible 

for obtaining permissions for the use of the adjacent 

sites. If damage is caused to the adjacent sites in 

connection with the Contractor’s work, for whatever 

reasons, the Contractor shall indemnify the 

Employer against any claims, in particular against 

claims under sections364, 354 a and b Austrian Civil 

Code. This shall also apply, if the Employer is not the 

owner of the property, but liable to the property 

owner on account of contractual obligations. If 

demanded by the neighbourhood, the Contractor 

shall arrange proceedings for the preservation of 

evidence at its own expense. 

9.4. Disagreements and disputes on whether 

payments to be made by the Employer are justified 

or have become due, shall not entitle the Contractor 

to suspend or discontinue the work or to withdraw 

from the contract. 

9.5. If the Employer has to provide drawings, 

the Contractor shall request these drawings from the 

Employer in a timely manner. Unless otherwise 

agreed, drawings shall be submitted eight days 

before the scheduled execution of the corresponding 

work at the latest, in specific cases, they may be 

submitted three days in advance at the latest. 

9.6. The Contractor shall at its own expense 

make provisions for the proper disposal of 

construction wastes and packing materials, thereby 

complying with the applicable legislation. If the 

Contractor does not fulfil its obligations, the 

Employer shall be entitled to have the waste and 

packing materials removed at the Contractor’s 

expense. 

9.7. The Contractor shall employ only 

subcontractors and suppliers approved by the 

Employer in writing. The Employer shall have the 

right to reject subcontractors. The Contractor shall 

not be entitled to demand extra expenses because of 

the rejection of a subcontractor. The Employer shall 

have the right to inspect the Contractor’s 

agreements with subcontractors and to obtain from 

the Contractor any information requested. These 

general contract terms and conditions shall be 

imposed on the subcontractors with binding effect. If 

the Contractor commissions subcontractors, it shall 

be fully liable for work performed by the 

subcontractors to the same extent as for its own 

work. Any liability of third parties, in particular the 

Employer, the planner and site supervisors, shall be 

excluded. 

9.8. The Contractor shall carry out the entire 

communication and coordination with the Employer 

and its appointed general planner itself, especially if 

it uses subcontractors. If design sheets, drawings 

etc. are submitted by subcontractors, they must be 

examined and approved by the Contractor before 

being forwarded to the Employer or its general 

planner. Any departures from this procedure shall be 

permissible only with the written approval and 

written authorization of the subcontractor by the 

Contractor. This authorization shall include the 

provision that the full liability for the subcontractor’s 

work shall remain with the Contractor also in the 

event of direct communication or coordination 

between subcontractor and Employer. 

9.9. Each Contractor shall pay to the Employer 

the following fees to partially cover the Employer’s 

expenses: 

- for a collective advertisement in the local press 

after completion of the building project a fee in the 

amount of 0.1 per cent of the net final account sum; 

- a fee in the amount of 0.8 per cent of the net 

final account sum for intermediate cleaning, disposal 

of building rubble, residual construction waste, 

wastes and packing the producer of which could not 

be determined and for the repair of general 

construction damage the originator of which could 

not be identified, without verification to be provided 

by the Employer; if the costs for the above 

measures exceed 0.8% of the total billing amount of 

the building project, the costs shall be divided 

among the Contractors which had been working at 

the building site at the time the damage was caused 

proportionately to the share of their contract value in 

the total billing amount of all contractors. 

- A fee in the amount of 0.3% of the final account 

sum for a Contractor`s All Risks insurance and a fire 

insurance policy taken out by the Employer, without 

verfication to be provided. If the costs for the 

Contractor’s All Risks Insurance and fire insurance 

exceed 0.3% of the total billing amount of all 

companies working at the building site, the Employer 

will submit verification for the higher fee to be paid. 

The above amounts are net amounts and reduce the 

remuneration in the sense of sales tax law, i.e. the 

amounts are deducted from the net final account 

sum (before tax). 



- The Contractor shall further contribute to the 

costs of the construction sign. The Contractor’s own 

signs must not be affixed at the building site. If the 

Contractor is commissioned as general contractor 

the fees listed in this item are not applicable. 

However, the general contractor shall pay a fee for a 

collective advertisement in the local press after 

completion of the building project in the amount of 

0.1 per cent of the net final account some and a fee 

in the amount of 0.3 per cent of the net final account 

sum for a Contractor’s All Risks Insurance and fire 

insurance, without verification to be provided. The 

net amounts reduce the remuneration in the sense 

of sales tax law, i.e. the amounts are deducted from 

the net final account sum (before tax). If the actual 

costs should exceed the lump sum fees deducted 

(0.1% or, respectively, 0.3%), the higher deduction 

shall be verified by the Employer. 

9.10. Additions and amendments to the 

construction contract shall be approved in writing by 

the Employer’s authorized representatives. The same 

shall apply to a waiver of written form. 

9.11. In case the Employer or the party 

inviting tenders or another third party acting on 

behalf of the Employer has to hand over documents 

to the Contractor, these documents may be handed 

over at the Employer’s choice either on paper or in 

digital form via an installed internet server available 

to the Contractor for downloading the required 

documents. The Contractor shall be obligated to 

install a high-capacity internet access at its own 

expense. If the Contractor should wish to receive 

documents on paper despite the above possibility of 

data transfer via internet any costs incurred by this 

shall be charged to the Contractor or deducted from 

the Contractor’s invoices. Drawings are provided to 

the Contractor in digital form only as plot plot files or 

in some cases as pdf files. The files are either 

transmitted via data carriers or by e-mail or to an 

internet server installed at the site. The 

downloading, printing and copying of all documents 

shall be made by the Contractor. The costs for this 

shall be included in the unit prices. For this purpose 

the Contractor shall be responsible for a suitable, 

high-capacity internet access and computer 

equipment. A fee of EUR 15.00 shall be charged for 

each drawing transmitted on paper (hard copy), 

payable to the general planner or the party sending 

the documents. 

If an internet server (project platform) has been 

installed for the building project, all costs for the 

installation and maintenance of the internet server 

shall be paid by the Employer or the general planner 

commissioned by the Employer. The Contractor shall 

also receive free of charge suitable information and 

instructions on the proper use of the internet server. 

No additional support (e.g. trainings, hotlines etc.) 

shall be provided. The contractor agrees that 

person-related data (addresses, phone number etc.) 

will be stored during the use of the internet server 

and made available to the other participants in the 

project. Drawings and other materials shall be 

deemed to be transmitted with the moment they 

have been made available on the internet platform 

(upload) or sent by email. The Contractor shall be 

responsible for downloading drawings and other 

information materials from the internet server or 

mailbox in time without prior notification (obligation 

to obtain). The Contractor shall be obligated to 

empty its mailbox regularly and in time (download). 

The Contractor shall not be permitted to use 

drawings, specs and other technical documents 

related to the contract for any other purpose than 

for the implementation of the order, unless expressly 

authorized to do so by the Employer in writing. 

9.12. The Contractor’s authorized 

representative responsible for matters concerning 

the building site shall be reachable at any time 

during normal working hours. The site manager 

appointed by the Contractor or other persons 

representing the Contractor at construction or 

project meetings shall be authorized to make legally 

binding decisions and receive instructions from the 

Employer. The Contractor shall be responsible for 

ensuring that no administrative offences are 

committed in connection with the implementation of 

its work. In particular the Contractor shall comply 

with the applicable trade, labour and social 

legislation. The required work permits shall be 

submitted within two weeks after verbal placement 

of the order and provided for the entire contract 

period. Non-compliance with these requirements 

shall entitle the Employer to withdraw from the 

contract. In particular the Contractor shall be 

obligated to fully comply with the rules and 

regulations of the Austrian Act Governing the 

Employment of Foreign Nationals and to indemnify 

the Employers for any violations of these rules and 

regulations. 

9.13. Upon the Employer’s request the 

Contractor shall submit a formal declaration of 

approval from abutters together with the final 

account, or - if requested later – at the earliest. With 

such a declaration all neighbours, entities 

responsible for road maintenance or owners of 

pipeline wayleaves or other easements confirm that 

they will not file any compensation claims against 

the Employer and/or property owner in connection 

with the Contractor’s work. 

9.14. An inspection of the site by third parties 

as well as video or film recordings or photographs 

shall be permissible only with the Employer’s prior 

approval. The Contractor shall undertake to actively 

participate in the b2b internet platform offered by 

the Employer for the building project, in particular to 

facilitate and expedite correspondence. 

9.15. If the Contractor’s work or materials 

supplied are protected by industrial property rights, 

patents, licences etc., the Contractor shall be 

obligated to obtain for the employer free of charge 

any licences required for utilisation of the deliveries 

and work and submit them together with the final 

account or – if requested later – without delay. It 

shall further indemnify the Employer against any 

claims made by the property right owners. 

9.16. If the Employer defaults in payments, it 

shall be required to pay default interest to a 

maximum amount of 5 percent annually contrary to 

legal requirements. The Employer shall not be 

obligated to compensate to the Contractor any 

damage incurred by the default in payment, unless 

the Employer is guilty of gross negligence. The 

contractor shall not be permitted to set off pecuniary 

claims of the Employer against the Contractor’s own 

or ceded claims. 

9.17. This Agreement shall exclusively be 

governed by and construed in accordance with 

Austrian law, to the exclusion of Austrian 

international private law. All disputes arising out of 

this Agreement shall exclusively be referred at the 

customer's election either to the court having 

subject-matter jurisdiction in the City of Salzburg or 

to the court having local and subject-matter 

jurisdiction for the building site or the court having 

local and subject-matter jurisdiction for the 

customer's relevant branch office. Should any 

decision (judgment/order) of an ordinary Austrian 

court in the state of residence/at the corporate seat 

of the relevant contracting party not be enforceable 

for any reason whatsoever, any dispute arising from 

this Agreement or related to its violation, 

termination or nullity shall be finally settled under 

the Rules of Arbitration and Conciliation of the 

International Arbitral Centre of the Austrian Federal 

Economic Chamber in Vienna (Vienna Rules) by one 

arbitrator appointed in accordance with these rules. 

The language to be used in the arbitral proceedings 

shall be German. The place of arbitration shall be 

Salzburg. The parties agree that any communication 

in connection with this Agreement shall exclusively 

be in German. Any notice to the customer in any 

other language shall not have any effect. 



9.18 If any of the provisions of these General 

Tender and Contract Terms and Conditions should be 

or become invalid, this does not effect the validity of 

the remaining provisions. The Employer shall replace 

the invalid provisions by valid provisions which 

correspond most closely to the commercial, technical 

and legal purpose intended with the original 

provisions. 

............................., date .................... 

....................................................... 

Contractor (Tenderer)

general tender and contract terms and conditions for construction ...

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