Surveyors | Average Agents | Lloyd’s Agency

General Contract Terms

Certified Surveyors

Terms and Conditions:

General terms of business of transpack surveys GmbH, Vienna

(In accordance with the terms and conditions recommended by the Austrian Association of Sworn and Legally Certified Surveyors)

For all assignments issued to the company transpack surveys GmbH, the contract terms shall be in accordance with the General Contract Terms for private surveys and companies recommended by the Verband der Allgemein beeideten und gerichtlich zertifizierten Sachverständigen Österreichs (Austrian Association of Sworn and Legally Certified Surveyors) (see also www.gerichtssachverstaendige.at). The company transpack surveys GmbH, 1210 Vienna, Austria shall hereinafter be referred to as Surveyor or Agent.

  • § 1 Area of application

    • The terms and conditions shall apply to contracts between the Surveyor and the Client, regarding surveys, assessments and other instructions insofar as nothing else was explicitly agreed upon in written form.
  • § 2 Subject of the contract

    • 2.1The Agent shall provide his contractually agreed-upon services with the due diligence of a respectable Surveyor. The Agent shall attempt to make good use of experience from all prior instructions for the Client
    • 2.2The Agent shall be personally responsible for following the received instructions. Use of auxiliary staff under the Agent’s supervision is permitted.
    • 2.3The Client shall employ other surveyors during the course of the contract in the area of responsibility of the Surveyor only pending prior approval from same.
  • § 3 Deadlines

    • If service deadlines are stipulated, their expiry shall begin as soon as the parties have agreed upon all details of the project, and the Client has provided the Surveyor with all contract-related documents, information or other relevant materials.
  • § 4 Early cancellation of the contract

    • 4.1The Surveyor shall be obligated due to his professional ethics to refuse survey instructions involving a conflict of interest. This may become discernible first at the time of preparation of the survey report. In this case, compensation of the Surveyor is cancelled, unless the Client kept any information secret that he knew would have had to be disclosed in relation to a possible conflict of interest.
    • 4.2If the contractual relationships are ended prematurely for whatever reason, the Surveyor shall retain the right to compensation for the work accomplished up to that point, unless the premature ending of work is solely within the responsibility of the Surveyor.
    • 4.3If the reason for termination is within the responsibility of the Client, the Agent shall receive the compensation mentioned under § 4.2 plus a lump sum compensation of 35% of the fees agreed upon for the services not yet rendered under the proviso of asserting further claims.
  • § 5 Confidentiality and disclosure of documents

    • 5.1The Agent shall not disclose, use or forward without authorisation the survey report or any other facts or documents which emerge in the course of carrying out the assignment and which pertain to the Client and the object of the assignment. Upon written request by the Client, the circumstance of the instruction itself shall be disclosed to third parties only after prior consent by the Client.
    • 5.2After all claims associated with the contract have been fulfilled, the Surveyor shall surrender all documents obtained by the Client or for the Client by reason of his work, upon the Client’s request. This, however, shall not include either written correspondence between the Surveyor and the Client or documents that the Client already possesses in the form of original text or transcripts/copies. The Surveyor reserves the right to produce and retain photocopies or transcripts of the documents returned to the Client at the latter’s expense.
  • § 6 Client’s duties

    • 6.1In order to determine possible prejudice, the Client shall, without solicitation, disclose to the Surveyor all parties directly or indirectly involved in the dispute as well as the potential recipients of the survey report.
    • 6.2The Client shall provide the Agent free of charge all necessary support and documents required to complete the assignment as instructed. Additionally, the Client shall name a contact person who is responsible for the coordination of appointments between the Surveyor and employees of the Client for the procurement of documents. The Client shall, upon request by the Surveyor, provide the same with appropriate working conditions at the sites of survey.
    • 6.3The Client shall, without solicitation, ensure that all the necessary documents needed to fulfil the contract are submitted on time to the Surveyor and that the same is kept informed of all procedures, facts, and circumstances that could be relevant to carry out the instructions. In particular, these include all previous survey reports of the object in question, where applicable, and the value of the disputed object. This also applies to any documents, procedures and circumstances that are ascertained only during the survey(s).
    • 6.4Upon request of the Surveyor, the Client shall confirm in a written explanation the completeness of the submitted documents and of the statements and explanations.
    • 6.5The Client shall transmit only complete final versions of the survey report. In particular, the Client shall forward neither drafts nor parts of the survey report without consulting first with the Agent.
  • § 7 Acceptance

    • 7.1Service shall be deemed unconditionally accepted unless the Client objects to the performance within a period of four weeks after submission by means of a written statement to the Agent.
    • 7.2Partial services are considered individually accepted pursuant to § 7.1.
  • § 8 Warranty

    • Excluding any other warranty or compensation claims as well as claims arising from an error regarding lack of defects, faults are to be rebuked by means of written message to the Agent within 14 days after discovery. All warranty claims shall be deemed time-barred upon expiry of six months from the time of acceptance as outlined in § 7.
  • § 9 Liability

    • 9.1Claims for damages by the Client against the Agent or a legal representative or assistant/vicarious Agent due to offence, breach of contract or culpa in contrahendo – with the exception of bodily injury – shall arise only in cases of wilful intent or gross negligence on the part of the Agent. It shall be the responsibility of the Client to prove the negligence or fault of the Agent.
    • 9.2The Agent shall be liable only when and if such damage was foreseeable at the time of the incident or of contract conclusion, considering all known or grossly culpable unknown circumstances.
    • 9.3The Surveyor shall not be liable for damage that was caused by failure to cooperate or submit necessary documents on the part of the Client pursuant to § 6.
    • 9.4Insofar as the Agent is liable, liability shall be limited to the contract value of the partial performance during which the damage was caused. There shall be no liability for indirect damage or consequential damage.
    • 9.5Any liability to a third party is excluded. The subject contract establishes no obligations in favour of third parties. The exception to this are the recipients of the survey report as provided by name to the Surveyor at the time of issuing the assignment. The Agent shall be liable to them as he is to the Client.
    • 9.6The Surveyor shall not be liable for consequential damage due to deficiency. Any claims for damages shall be deemed time-barred upon expiry of six months from the time of performance delivery.
    • 9.7The terms of the section apply particularly for damage caused by delay.
    • 9.8Moreover, the Agent’s liability shall be limited to EUR 100,000.00 per incident of loss in cases described in the preceding paragraph. This limitation of liability shall be applicable regardless of how many claims are raised as a result of one incident of loss. If the sum of all individual claims exceeds EUR 100,000.00, the amount shall be distributed on a pro-rata basis in proportion of the claims raised. If the distribution is contested among the claimants, for whatever reason, the Agent shall be able to relieve itself of liability against all claimants by depositing the maximum amount of liability.
  • § 10 Default of acceptance and lack of cooperation on the part of the Client

    • If the Client is in default of accepting the services provided by the Surveyor or if the Client does not provide the cooperation incumbent on him pursuant to § 6 or otherwise, the Surveyor is entitled to cancel the contract immediately. His claims shall be governed by § 4.2 and § 4.3. This shall not affect the Surveyor’s right to compensation for additional expenses as well as for damages caused by default or the lack of assistance, even if the Surveyor does not exercise his right to cancel.
  • § 11 Compensation

    • 11.1The fees for services that are calculated on a time-and-trouble basis shall be based on an eight-hour workday and five working days per week. Travelling time shall be considered working time.
    • 11.2Unless explicitly agreed upon in an individual instance, accommodation and meal expenses at the survey site incurred by an employee of the Agent in accordance with rates permitted by tax regulations (should these rates be insufficient for the accommodation expenses, the reasonable, substantiated costs shall be applied) as well as to-and-fro travelling expenses of the employee of the Agent, whereby each employee is entitled to a weekly trip home, shall be charged to the Client.
    • 11.3All agreed upon compensation shall be understood as net prices. The value added tax in effect shall be identified separately and is charged to the Client in addition to the compensation.
    • 11.4The Surveyor shall be entitled to demand advance payment and reimbursement for expenses and make the rendering of his services dependent upon the complete satisfaction of his claims.
    • 11.5For services charged on an hourly basis, the Surveyor shall submit monthly interim invoices.
    • 11.6For fixed-price contracts, the Surveyor shall charge 50% of the contract value after confirmation of instructions. The remaining 50% shall be invoiced after the assignment is completed. Accommodation and travelling costs pursuant to § 11.2 shall be charged following completion of the assignment, provided the assignment is completed within three months. Should the process take longer, accommodation and travelling costs will be charged on a quarterly basis.
    • 11.7All invoices are payable 14 days from date of invoice without deduction, provided the invoice is posted at the latest on the following day. The date of credit in the Surveyor’s bank account shall be decisive for whether or not the payment is made in time. The offsetting or assertion of right of retention of due fees by the Agent shall only be permitted if the Client’s claim is undisputed or legally binding.
  • § 12 Targeted solicitation

    • While his assignment is being carried out and within 12 months thereafter, the Client shall not hire staff of the Surveyor, nor employ them in another form at their company or a controlled enterprise.
  • § 13 Closing provisions

    • 13.1All offers from the Surveyor are non-binding, unless expressly otherwise stated in the offer.
    • 13.2The contract replaces all previous agreements regarding its subject matter. Any amendments or supplements shall require a written agreement.
    • 13.3A relinquishment of claims from this contract shall not be permitted.
    • 13.4This contract is subject to Austrian law. Exclusive jurisdiction is – depending on the value in dispute – the competent courts in commercial matters in Vienna.