GENERAL TERMS AND CONDITIONS for entrepreneurs (B2B)

Status: 15.01.2024

1. APPLICATION

All contracts concerning services, deliveries and other services concluded by flamengo.immo GmbH (hereinafter referred to as the "contractor") with a contractual partner are governed exclusively by the following General Terms and Conditions. Deviating terms and conditions shall only be deemed to have been agreed if this has been agreed in writing between the contractor and the contractual partner.
The Contractor provides its services, deliveries and other services exclusively to entrepreneurs within the meaning of Section 1 KSchG.
The GTC shall also apply to all future deliveries, services or offers with the contractual partner, even if these are not separately agreed again.
General terms and conditions of business or other terms and conditions of service or sale of contractual partners, which are listed, for example, on offers or other correspondence of the contractual partner, shall not become part of the contract with the contractor, even if these are not contradicted, unless the contractor has agreed to these in writing in advance. If the validity of deviating agreements is agreed in writing in individual cases, the deviations shall apply exclusively to this individual business case.
The currently valid version of these GTC can be viewed and retrieved at any time on the Internet at https://flamengo.immo/agbs and is also available for download there or can be sent on request.

2. CONCLUSION OF CONTRACT

All information provided by the Contractor on the services offered to contractual partners is non-binding and subject to change.
Binding offers from the contractor can only be accepted by the contractual partner in writing within the respective offer period.
Unless otherwise agreed in writing, the documents pertaining to details of the Contractor's respective services, such as performance specifications, etc., shall not be deemed to be specially warranted characteristics.
Any offers made by the Contractor can only be accepted with regard to the entire service offered. If the contractual partner's declaration of acceptance deviates from the contractor's offer, this deviating declaration of acceptance by the contractual partner shall constitute a new offer that can be accepted by the contractor.

3. PRICES

The prices shall apply to the scope of services and delivery specified in the respective contract. The commissioning of deliveries or services that go beyond the scope defined in the contract (in particular additional or special services) shall be invoiced separately.
All prices are quoted in euros. Unless expressly agreed otherwise in writing, prices are not to be understood as a lump sum.
Unless otherwise stated by the Contractor, all prices quoted are exclusive of all duties and taxes, in particular exclusive of statutory value-added tax or import duties, and exclusive of any shipping costs, travel costs and expenses. Any duties, taxes and shipping costs shall be invoiced additionally.
All prices are based on the assumption that the services can be performed continuously, unhindered and without interruption. Additional costs due to hindrances or interruptions to the continuous process for which the contractual partner or third parties attributable to it are responsible shall be invoiced separately to the contractual partner.
Unless otherwise agreed in writing, the Contractor shall be entitled to increase prices if - due to circumstances beyond the Contractor's control - after the date of submission of the offer by the Contractor or acceptance of the offer by the Contractor
1. suppliers or subcontractors increase their prices; these increases can be passed on to the contractual partner in full;
2. wages and salaries have increased due to statutory or collectively agreed adjustments or energy costs, transportation costs or taxes have increased for the client; the increase shall be made to the extent of the cost increase affecting the contractor, but only to the extent to which these have a cost-increasing effect on the contract partner's order.
Price increases shall be communicated to the contractual partner by means of an individually addressed letter (if necessary by e-mail), stating the circumstances and reasons for the price increase together with the resulting changes by the client.
If discounts and special conditions are advertised on the client's website, these shall only apply to first-time bookings by new customers within the promotional period for the minimum contract term. In the event of a contract extension, the regular prices valid at the time of the contract extension shall then apply.
In the case of deliveries and services, the contractual partner must provide the contractor with its VAT ID number (UID number). If the contractual partner does not disclose the VAT number or does not disclose it correctly, misuses the VAT number or if the goods are not imported or exported to another EU country, the contractual partner shall be liable to the contractor, without prejudice to any further claims, in particular for the payment of VAT at the statutory rate.

4. TERMS OF PAYMENT, INTEREST ON ARREARS, PARTIAL INVOICES, LOSS OF DEADLINE, RETENTION OF TITLE

The respective remuneration of the Contractor shall be due upon invoicing, unless special payment terms are agreed in writing in individual cases. The Contractor shall be entitled to pass on all cash expenses to the contractual partner without delay.
The Contractor's deliveries shall remain the property of the Contractor until full payment of the remuneration including all ancillary liabilities. The contractual partner shall have no right of retention to (partial) services vis-à-vis the contractor. Any sale, pledging, leasing, transfer by way of security or other transfer of the reserved property to third parties is prohibited. In the event of seizure or other use of the reserved property by third parties, the contractual partner shall be obliged to assert the contractor's right of ownership at its own expense and to inform the contractor by means of verifiable written notification within 24 hours.
The assertion of the retention of title by the Contractor shall not be deemed a withdrawal from the contract in the absence of an express written declaration to the contrary by the Contractor. Rather, in addition to the claim for surrender, the Contractor shall retain the rights arising from the respective contract, in particular the right to compensation for damages.
In the event of default of payment by the contractual partner, the statutory default interest shall apply in the amount applicable to business transactions in accordance with Section 456 UGB. The assertion of further claims, in particular claims for damages, shall remain unaffected.
The Contractor and the Contractual Partner agree that in the event that the Contractual Partner does not properly fulfill its obligation to pay, compound interest shall be due in addition to the statutory default interest in accordance with Section 1000 (2) ABGB.
The Contractor shall be entitled to demand immediate payment and to perform or render outstanding deliveries and services only against advance payment or provision of security as soon as circumstances become known which are likely to significantly reduce the creditworthiness of the Contractual Partner and which appear to jeopardize the payment of the Contractor's outstanding claims by the Contractual Partner arising from the respective contractual relationship.
In the event of default of payment by the contractual partner, the contractor shall be entitled to invoice all services and partial services rendered, including those under other contracts concluded with the contractual partner, and to demand immediate payment. Furthermore, the Contractor shall not be obliged to provide any further services until the outstanding amount has been paid and shall be entitled to demand advance payment or security for services and deliveries still to be provided or to withdraw from the contract after setting a reasonable grace period. This shall not affect the contractual partner's obligation to pay remuneration.
If payment in installments has been agreed, the Contractor reserves the right to demand immediate payment of the entire outstanding debt in the event that partial amounts or ancillary claims are not paid on time (loss of deadline).
The Contractual Partner is not entitled to offset its own claims against claims of the Contractor unless the Contractual Partner's claim has been recognized by the Contractor in writing or has been legally established by a court of law.
Benefits granted by the Contractor (rebates, discounts, cash discounts) shall also expire retroactively in full for the entire order if the contractual partner defaults on payment of even one partial, final or other invoice.
Cash discounts may only be claimed if they have been expressly agreed in writing and have not already expired as stipulated above. A cash discount deduction on the final invoice is only permissible if all previous partial invoices have been paid on time. A discount deduction for partial invoices is only permissible if such a discount deduction is noted on the invoice.
Unlawful price deductions made by the contractual partner shall also lead to the retroactive loss of the entire cash discount and all other price reductions for the entire order or partial services.
Partial invoices are always permissible for partial deliveries/partial services. The terms of payment stipulated for the entire order shall apply equally to partial invoices.
The Contractor is also entitled to send invoices to the Contractual Partner in electronic form (in particular by e-mail) to an address provided by the Contractual Partner. The contractual partner expressly agrees to the sending of invoices in electronic form.

5.DELIVERY AND PERFORMANCE, SCHEDULE CHANGES, CANCELLATIONS

The performance and delivery deadlines and dates shall be adhered to by the Contractor as far as possible. Unless they have been expressly agreed as binding, they are non-binding and are always to be understood as the expected time of provision and handover to the contractual partner.
The Contractor is entitled to postpone agreed service and delivery dates or extend deadlines for the provision of services if it is impossible or unreasonably difficult for the Contractor to meet the deadlines and the circumstances are beyond the Contractor's control. This applies in particular to labor disputes, fire, war, strike, pandemic, environmental disasters, etc.. This also applies if such unforeseen obstacles and circumstances occur at subcontractors or vicarious agents.
If circumstances for which the Contractor is not responsible result in the Contractor being unable to fulfill all outstanding orders on time (objective delay), the Contractor shall not be obliged to make use of external services.
The contractual partner is obliged to accept the deliveries and services provided by the contractor on the agreed date.
If services ordered are unilaterally changed or canceled by the contractual partner without the involvement of the contractor - without prejudice to other ongoing support by the contractor - the contractual partner must reimburse the entire remuneration agreed for this order, whereby the offsetting requirements of Section 1168 ABGB are excluded in full. Furthermore, the contractual partner shall indemnify and hold the contractor harmless with regard to any claims by third parties due to a change/cancellation of the commissioned services attributable to the contractual partner, in particular by contractors of the contractor (subcontractors). Upon payment of the fee, the contractual partner shall not acquire any rights of use to services that have not been fully rendered; concepts, drafts and other documents that have not been executed shall be returned to the contractor without delay, unless expressly agreed otherwise.

6. SCOPE OF SERVICES, ORDER PROCESSING AND COOPERATION OBLIGATIONS OF THE CONTRACTUAL PARTNER

The scope of the services to be provided is set out in the service description in the contract with the contractual partner or in any quotation, if necessary on the basis of a non-binding cost estimate from the Contractor. Subsequent changes to the service content require written confirmation by the contractor. Within the framework specified by the contractual partner, the contractor shall have freedom of design in the fulfillment of the order.
All of the Contractor's services (in particular all preliminary drafts, electronic files or other documents required for the provision of services, etc.) must be reviewed by the Contractual Partner and approved by the Contractual Partner within five working days of receipt by the Contractual Partner. If this period expires without feedback from the contractual partner, they shall be deemed to have been approved by the contractual partner.
The contractual partner shall provide the contractor with all information, documents and data required for the provision of the service and delivery in a timely, complete and continuous manner. It shall inform the Contractor of all circumstances that are of significance for the fulfillment of the contract, even if these only become known during the execution of the order. The contractual partner shall bear the costs incurred if work has to be repeated or adapted or is delayed as a result of incorrect, incomplete or subsequently changed information provided by the contractor.
The contractual partner is also obliged to check the data provided for the execution of the order (e.g. photos, logos, etc.) for any copyrights,
trademark rights, labeling rights or other rights of third parties (rights clearing) and guarantees that the documents are free of third-party rights and can therefore be used for the intended purpose. In the event of slight or gross negligence or after fulfilling its duty to warn, the Contractor shall not be liable - at least in the internal relationship with the Contractual Partner - for any infringement of such third-party rights by documents provided by the Contractual Partner. If a claim is made against the Contractor by a third party due to such an infringement of rights, the Contractual Partner shall be obliged to indemnify and hold the Contractor completely harmless; the Contractual Partner shall compensate the Contractor for all disadvantages arising from a claim by a third party, in particular the costs of appropriate legal representation. The contractual partner undertakes to support the contractor in the defense against any third-party claims. The contractual partner shall provide the contractor with all documents for this purpose without being requested to do so.
The contractual partner shall ensure that the organizational framework conditions for the provision of the services by the contractor at its place of business allow the work to proceed as undisturbed as possible and in a manner conducive to the rapid progress of the consulting process.
The Contractor may, at its own discretion, perform the service to the Contractual Partner in part or in full itself, use competent third parties as vicarious agents in part or in full for the provision of contractual services and/or substitute such services in part or in full ("External Service"). The commissioning of third parties as part of an external service shall be carried out either in the Contractor's own name or in the name of the contractual partner. The Contractor shall select such third parties carefully and ensure that they have the necessary professional qualifications. The contractual partner must enter into obligations towards third parties that extend beyond the term of the contract. This shall also expressly apply in the event of termination of the contract with the Contractor for good cause.

7. RIGHTS (INTELLECTUAL PROPERTY, ETC.)

The contractual partner shall be granted the right to utilize the delivered works, documents and services provided only within the scope of the order described in the contract and only for the purposes of the contract. In particular, the contractual partner is not entitled to reproduce and/or distribute the documents and works owned by the contractor without the express consent of the contractor.
Unless otherwise agreed, the Contractor reserves all rights and uses to the works delivered, documents created (in particular drafts, concepts, strategies) and services rendered. In particular, the contractor therefore has all property and intellectual property rights to the services created within the scope of the order. The Contractor therefore retains the irrevocable, exclusive and temporally, materially and geographically unrestricted right of use to the aforementioned services - with the exception of the right of the contractual partner in accordance with point 1. Furthermore, the Contractor shall be entitled to transfer its rights to third parties, to grant sublicenses thereto and to grant rights of use or
authorizations to use the work.
Any breach by the contractual partner of the provisions set out in point 2 shall entitle the contractor to terminate the contractual relationship immediately and prematurely and to assert further statutory claims, in particular for injunctive relief and/or damages.

8. WARRANTY, NOTICE OF DEFECTS

Special or warranted characteristics shall only become part of the contract if they have been agreed in writing.
The warranty period is 12 months.
No warranty is provided for minor deviations of the service from what has been agreed and the contractual partner is also not entitled to reject the goods/service, to demand a price reduction or the cancellation of the contract due to error or for any other reason.
Goods delivered or services provided shall be deemed to have been handed over and accepted by the contractual partner upon delivery or provision of the service.
Notices of defects must be submitted by registered letter within 14 days of handover or acceptance of the service or partial service, whereby any defects occurring must be specified by the contractual partner. The contractor has the right to inspect the deliveries and services objected to by the contractual partner with regard to the defects claimed after the notice of defects has been given. If the contractual partner refuses the inspection, he shall lose all associated warranty claims and claims for damages.
The existence of defects must be proven by the contractual partner. The presumption of defectiveness at the time of handover (performance) pursuant to § 924 ABGB is expressly waived. The contractual partner must always prove that any defect already existed at the time of handover (performance).
The contractual partner may not refuse acceptance due to minor defects.
Excluded from the warranty are defects resulting from negligent, incorrect or improper handling of the services by the contractual partner or due to similar external influences. This is particularly the case if defects are attributable to incorrect data provided by the contractual partner.
In the event of a defect, the Contractor may choose whether to remedy the defect by improvement or replacement.
If the rectification of a defect or replacement is impossible or would cause disproportionately high costs, the Contractor may refuse to do so. In this case, the contractual partner may only request a price reduction. Otherwise, the warranty remedy of rescission is hereby expressly waived.
Under no circumstances shall the contractual partner be entitled to retain the agreed remuneration or a proportionate share of the remuneration or purchase price corresponding to the anticipated costs of rectification.
If the Contractor provides services with the assistance of third parties and warranty and/or liability claims arise against these third parties in this context, the Contractor shall assign these claims to the Contractual Partner. In this case, the contractual partner shall give priority to these third parties.
933b ABGB does not apply.

9. LIABILITY, EXCLUSION OF LIABILITY

In all cases under consideration, the Contractor shall only be liable for damages in the event of intent or blatant gross negligence. The Contractor's liability is excluded in cases of slight and other gross negligence. In the event of slight negligence and other gross negligence, the Contractor shall only be liable for personal injury. This also applies mutatis mutandis to liability for the conduct of third parties used by the contractor to fulfill contractual obligations.
The Contractor shall not be liable for indirect damage, loss of profit, loss of interest, failure to make savings, consequential damage and financial loss, damage arising from third-party claims or for the loss of data and programs and their recovery, unless the damage/defect is attributable to blatant gross negligence or intent.
Irrespective of the cause and legal basis of the damage, the Contractor's liability shall be limited to the amount covered by the Contractor's liability insurance or, if damage is not covered by this, to 50% of the amount of the remuneration of the respective contract, but in the case of a permanent order to a maximum of 50% of the annual remuneration of the respective contract for the year in which the damage occurred.
Claims for damages against the contractor must be asserted in court within six months of the contractual partner becoming aware of the damage and the person causing the damage or of the event otherwise giving rise to the claim, but at the latest within three years of the event (conduct) causing the damage (giving rise to the claim). The burden of proof for the existence and the amount of the damage lies with the contractual partner.
The above exclusions and limitations of liability shall apply to the same extent in favor of employees and other vicarious agents of the Contractor.
Reference is made to points 4. and 5.5.

10. WITHDRAWAL / TERMINATION

Irrespective of the other rights, the Contractor shall in particular be entitled to withdraw from or terminate the contract (i) if the contractual partner breaches its obligations under this contract, in particular its payment obligations or its obligations to cooperate, and does not restore the condition in conformity with the contract despite setting a grace period of 14 days, (ii) if the execution of the delivery or the start or continuation of the service is impossible for reasons for which the contractual partner is responsible or is further delayed despite the setting of a reasonable grace period, or (iii) if the service provided by the Contractor is delayed due to reasons for which the contractual partner is responsible. or the commencement or continuation of the service is impossible for reasons for which the contractual partner is responsible or is further delayed despite the setting of a reasonable grace period, or (iii) if the service to be provided by the contractor becomes impossible or uneconomical for the contractor due to circumstances beyond the contractor's control.
If a continuing obligation is concluded, this may be terminated by the Contractor at any time without notice, irrespective of any agreed time limit, for good cause. Good cause shall include in particular: (i) the breach of the contractual partner's obligations under this contract, in particular the payment obligations or the obligations to cooperate, (ii) the loss of confidence in the contractual partner as a contractual partner if the execution of the delivery or the commencement or continuation of the service is impossible for reasons for which the contractual partner is responsible or is further delayed despite the setting of a reasonable grace period, (iii) if the service to be provided by the contractor becomes impossible or uneconomical for the contractor due to circumstances beyond the contractor's control.
The Contractor expressly reserves the right to assert further claims.
Withdrawal from the contract by the contractual partner due to delayed delivery is only possible after setting a reasonable - at least 4-week - grace period. The withdrawal must be asserted by registered letter. The right of withdrawal shall only apply to the part of the delivery or service in respect of which there is a delay. In all other cases, withdrawal from the contract can only be declared for good cause.
Without prejudice to further claims, the Contractor shall be entitled to invoice services or partial services already provided in the event of justified withdrawal or termination by the contractual partner. This shall also apply if the delivery or service has not yet been accepted by the contractual partner. Alternatively, the Contractor shall also be entitled to demand the return of items already delivered or services already rendered.
In the event of a justified withdrawal from the contract by the contractual partner, the contractor is entitled in all cases to demand a contractual penalty of 15% of the gross invoice amount without proof of actual damage and regardless of fault. The Contractor reserves the right to assert further damages and other claims.
If the contractual partner unjustifiably declares withdrawal from the contract or unjustifiably declares its termination, the contractor shall have the option of demanding fulfillment of the contract or damages for non-performance; in the latter case, the contractual partner shall be obliged, at the contractor's discretion, to pay a contractual penalty of 15% of the gross invoice amount or compensation for the actual damage incurred, without proof of actual damage and regardless of fault. If the Contractor demands performance of the contract, the Contractor shall be entitled to claim any damages in connection with the unjustified withdrawal from the contract or the unjustified termination of the contract. In any case, the Contractor reserves the right to assert other legal and contractual claims to which it is entitled against the contractual partner.

11. CONFIDENTIALITY, PUBLICATION

The contractual partner undertakes to use all information, data, calculations, reports and programs provided to it only for this project and otherwise to keep them secret. The contractual partner shall also ensure that its employees or third parties involved in the project by the contractual partner comply with this confidentiality agreement.
The Contractor shall be entitled to reference or publish services provided for the Contractual Partner by naming the Contractual Partner, in particular to advertise itself or its services in this way.
The contractor is also entitled to use the contractual partner's company logo for advertising and marketing purposes in print and online media. This use can be revoked by the contractual partner at any time.

12. APPLICABLE LAW / PLACE OF JURISDICTION / PLACE OF PERFORMANCE

Austrian substantive law shall apply to the exclusion of its conflict of law rules. The applicability of the UN Convention on Contracts for the International Sale of Goods is expressly excluded.
For all disputes arising from this contract, including the question of the valid conclusion of the contract and its preliminary and subsequent effects, the exclusive jurisdiction of the court with local and subject-matter jurisdiction at the Contractor's registered office is agreed.
The place of performance for deliveries and services of the Contractor shall in all cases be the Contractor's registered office.

13. FINAL PROVISIONS

Amendments or additions to a contract must be made in writing. This also applies to changes to the written form requirement.
The contractual partner is obliged to inform the contractor of any changes to its business and/or e-mail address, otherwise declarations by the contractor shall be deemed to have been received if they are sent to the last business and e-mail address provided.
Should individual provisions of these GTC be or become void, unenforceable and/or invalid, this shall not result in the invalidity, unenforceability and/or invalidity of the entire GTC. In this case, the parties undertake to replace the void, unenforceable and/or invalid provisions with a provision that comes closest to the economic purpose of the void, unenforceable and/or invalid provision. The same applies to loopholes in these GTC.
The Contractor expressly reserves the right to amend these GTC. Amendments to the GTC shall be notified to the contracting parties and shall be deemed to have been agreed if the contracting party does not object to the amended GTC in writing within 14 days; the contracting party shall be expressly informed of the significance of silence in the notification. The Contractor shall have no right of objection with regard to technically necessary and safety-relevant changes or changes that are necessary due to changes in the legal or statutory situation. These changes shall apply 14 days after notification to the contractual partner.
The contract language is German.