1.1 Contractual Parties
SCHINDLER CREATIONS (hereinafter referred to as “Schindler”) provides its services only on the basis of the following terms and conditions (hereinafter referred to as “TAC”). The TAC also apply to any future business relations with Schindler customers (hereinafter referred to as “Principal”), even if no future reference to them is explicitly made.
The provisions of the Principal’s TAC are binding for Schindler only if Schindler has recognized them in writing. This is true even if the contractual partner refers to his own terms and conditions. Oral agreements that constitute an additional obligation for Schindler are binding only if Schindler confirms them in writing.
Contractual conditions that contradict these TAC, specifically Principal terms and conditions or contract forms, are hereby rejected. Their validity is hereby revoked.
The Principal is the contractual partner in whose name Schindler’s offer has been accepted. This is true even if the customer provides no corporate signature. The Principal avers that the signatory of the Principal’s offer has the requisite signatory authority.
The contractor is Schindler.
2.3 Project Officers
Project officers are employees or organs of the contractual parties that serve as points of contact during the term of the contract. Written declarations made by the project officers are binding for the relevant contractual party.
Design services are those necessary to create a design draft or model.
3.2 Offer Basis
The offer basis is the information referring to the services cited in the offer. Only information that the Principal has provided to Schindler will be taken into account during project implementation. All information is subject to the general written form requirement (letter, fax, e-mail, etc.) and will be provided to Schindler in a suitable form. Oral information cannot serve as a legally binding offer basis.
Oral information can be used as an offer basis only if it is also expressed in writing and countersigned by both parties. Written information such as a specification sheet or a briefing can also be used. The degree of detail in a specification sheet or a briefing will be determined by the Principal. This information may be used to produce design drafts. For a fee, Schindler can also assist in preparing a specification sheet or a briefing if a request is made in writing. Any information not included in the offer in writing will not influence the design drafts.
3.4 Design Draft
A design draft is a template that can be used later to implement a product. The design draft involves no technical development or construction work. A design draft is thus not a detailed construction template and cannot be used directly to implement a product.
3.5 Design Sequence Plan (DSP)
Schindler uses an extensively tested design sequence plan. The DSP is used to provide design services that are commissioned. The DSP governs internal service provision and the allocation of internal services to the individual project stages. It allows optimum consideration of Principal requests and timely service provision given internal resources. An offer is calculated based on the distribution of internal resources. The Principal notes that service provision can be changed for a fee after an explicit agreement has been reached. The DSP was explained in detail to the Principal before this contract was signed. The Principal confirms that he has understood it and accepts the entirety of its content.
3.6 DSP Project Stages
To ensure transparent, traceable service provision, the entire project is usually divided into three project stages. The individual project stages represent the result of the service provided in the previous project stages and thus build on the previous stages.
3.7 Correction Stages
Schindler would like to involve the Principal actively in the design in each of the project stages. Correction stages thus allow “fine tuning” within the agreed-upon scope of services. The number of corrections indicated in the offer are provided for and included in the offer price. A correction desired by the Principal that affects a project stage that has already been completed constitutes a service change.
3.8 Model Construction
As early as Project Stage II, Schindler would like to provide the Principal with as clear an idea of the final product as possible. Model construction is an additional service on the part of Schindler; the scope of this service is determined by the service description in the offer. The cost and effort involved in providing this service cannot be estimated at the time of offer preparation, since it depends on draft complexity. The commissioning of this additional service directly affects the entire project schedule. This means that a specific offer can be prepared only after Project Stage II has been completed.
3.9 Change Request
A change request is a follow-up proposal for supplementary changes to the design draft that the Principal desires and for services that will be charged additionally (not included in the scope of the services offered). A change request will be charged; they are formulated in a separate offer. The Principal will provide the information necessary for the preparation of this offer. A change request suspends commissioned services. The project stage or DSP can be resumed only after the change request has been concluded.
If the Principal expresses a special desire for changes that affect project stages that have already been completed, these changes constitute additional services for the relevant project stages. The scope of services in the relevant project stages encompasses the cost necessary to achieve the defined project objective. The Principal’s desires will be taken into account to the extent that the project stage’s service content allows. However, Schindler will determine whether the DSP prevents such changes. Contributions made by the Principal do not reduce the scope of services in the individual project stages and can be taken into account only to the extent allowed by the DSP. Schindler’s entitlement to remuneration remains unaffected by such contributions.
3.11 Presentation Venue
Presentations are held at the Schindler headquarters. Presentations outside of those headquarters will be charged.
OFFERS AND COST ESTIMATES
4.1 Mixed Calculation
A mixed calculation based on the DSP is the basis of offer preparation. This calculation is made by the founder, one program manager, a design director, at least one senior designer, and the required number of designers and other staff members. The offer does not include the preliminary prototype (see 3.8) created after Project Stage II or any additional preliminary prototypes. They will be covered in a separate offer.
4.2 Infrastructure Services (Fixed Costs)
The necessary support and documentation services are calculated from the service description and included in the offer. Costs relating directly to the project, such as those for working space and hardware and software use, are also included.
4.3 Project and Material Expenditures (Variable Costs)
Explicitly listed additional services, the creation of additional design standards, samples to be produced, material costs for printing and/or model-building, creation of manufacturing data for production, creation of a prototype (model-building), new development of CI, drafts, and correction stages that exceed the scope of the offer will be charged additionally. Despite conscientious calculation, actual costs can deviate by +/- 15%.
4.4 Travel Expenses
Any necessary travel expenses and mileage (€0.66/km) are not included.
If the Principal desires that goods (prototypes, etc.) be delivered, the Principal will bear the delivery costs and assume transport risk.
4.6 Cost Estimates
Schindler cost estimates will be prepared according to the best specialized knowledge, but no guarantee of their correctness can be given. If, after the order has been placed, cost overruns of more than 15% arise, Schindler will inform the Principal without undue delay.
4.7 Cost Overrun
If the cost overrun is an unavoidable overrun of up to 15%, no special notification is necessary, and Schindler is entitled to invoice these costs without further ado.
4.8 Cost Estimates
Schindler cost estimates will be charged.
All offers are non-binding.
COMMISSIONING, SCOPE OF SERVICE, SERVICE PROVISION
5.1 Preparation Time
Schindler places great importance on planning and completing an ordered project so that the Principal is entirely satisfied. This requires an appropriate preparation period. For this reason, the offer must be accepted by four weeks before the desired project start. Otherwise, the deadline for project completion indicated in the offer cannot be met. The Principal will therefore make all information and documentation necessary for provision of services available to Schindler, completely and in good time, within the framework outlined in Paragraph 2.
5.2 Scope of Work
The scope of services Schindler is to provide is determined from the description of services in the offer or in any order confirmation by Schindler that deviates from the offer. Deviating written orders from the Principal require explicit confirmation from Schindler in writing. There will be no tacit acceptance by Schindler.
5.3 Design Freedom
Schindler retains freedom in developing the design. If the Principal desires a change to the drafts, Schindler is entitled to refuse to change the drafts if Schindler considers doing so to be unjustifiable on artistic/design grounds. If the contractual parties cannot reach an agreement in such a case, Schindler is entitled to extraordinary termination of the contract. In such a case, all costs incurred and services provided will be invoiced by Schindler and paid for by the Principal.
5.4 External Services
Schindler always performs all services itself. Schindler is nevertheless entitled, at its discretion, to make use of the services of competent third parties or freelancers to assist in service provision or to substitute services. If Schindler commissions necessary or agreed-upon external services, the service providers will not be considered vicarious agents of Schindler.
SERVICE CHANGES AND PERFORMANCE DEADLINES
6.1 Service Change
There has been a service change when a part of the agreed-upon service is cancelled and replaced with a different service. If the Principal initiates a service change, he will provide compensation for the service change in addition to the previously agreed-upon compensation. Schindler will prepare an offer for the changed service. When the Principal accepts the additional offer, the service change is considered to have been agreed upon. Service reductions result in price reductions if the service reductions are within Schindler’s sphere of responsibility and a written agreement to that effect has been reached.
6.2 Form Prescriptions
All agreements, subsequent changes, additions, collateral agreements, etc. between Schindler and the Principal must be in writing to be valid. This also applies to departure from the written-form requirement.
6.3 Performance Deadlines
Performance deadlines are according to the offer.
6.4 Acceptance Default
Schindler will notify the Principal when a project stage has been completed. If the Principal does not object within five days, the project stage is considered to have been completed according to the contract and handover performed.
At the time of offer acceptance, the Principal will advance Schindler 25% of the offer price. If the advance is late, the four-week period between offer acceptance and beginning of project will begin upon receipt of the advance.
Moreover, there is always a settlement at the end of each month. Payment is to be made immediately upon receipt of invoice and without deductions. Prompt payment by the Principal is a condition for further work by Schindler.
7.3 Payment Default
An interest rate for late payments of 9.2% above the base rate is considered to have been agreed upon for late payment, even if the Principal is not responsible for the delay. Moreover, the Principal agrees to pay Schindler reminder and collection fees. The assertion of other claims and entitlements remains unaffected.
7.4 Invoice Validity
If, within one week, the Principal makes no written justified objection to an invoice, that invoice is considered to have been approved.
7.5 VAT Regulation
All prices cited by Schindler are to be understood as not including VAT unless another agreement has been explicitly reached.
All goods delivered by Schindler, especially prototypes, etc., remain the property of Schindler until they are entirely paid for.
Schindler’s claims will not be offset by counterclaims of any type.
8.1 Early Termination
Schindler is entitled to terminate the contract effective immediately for good cause. Good cause is present in (but not limited to) the following cases: a) the provision of services becomes impossible or is delayed for a grace period of 14 days for reasons that are within the Principal’s responsibility; b) the Principal persists in violating considerable contractual obligations (payment obligation, cooperation obligation, etc.) despite a written warning and a 14-day grace period; c) rehabilitation, compensation, or insolvency proceedings are initiated against the Principal’s assets, or such proceedings are dismissed due to the Principal’s lack of capital.
8.2 Early Termination by the Principal
The principal is entitled to terminate the contract effective immediately for good cause. Good cause is present in (but not limited to) the following case: Schindler persists in violating considerable contractual obligations despite a written warning and a 14-day grace period. In such a case, compensation for services provided will become due.
8.3 Resource Protection
Schindler has allocated its resources in an order-specific manner according to the DSP. No other use of these resources is possible. If the Principal terminates the contract without good cause before its term has expired, Schindler is entitled to the compensation agreed upon for the entire order. Schindler is entitled to assert additional claims, including damage claims. In such a case, ownership, copyright, and usage rights remain Schindler’s.
9.1 Notice of Defect
The Principal will notify Schindler of any defects within eight days after Schindler has provided services. Schindler will be notified of hidden defects in writing, with substantiation, within eight days after such defects are discovered. Otherwise, service provision will be considered to have been flawless. In such a case, there will be no assertion of warranty or damage claims and no right to rescission based on defects.
9.2 Warranty Law
If the Principal files a timely, justified complaint, he will be entitled to performance improvement by Schindler. In such a case, a reasonable deadline will be set in writing for Schindler reflecting a period that is at least as long as the performance period according to the service description in the offer. If Schindler is unable to make timely improvements for justifiable reasons, the Principal is entitled to legal conversion and price reduction claims.
9.3 Warranty Period
The warranty period is six months from possible acceptance of the service by the Principal.
LIABILITY AND COMPENSATION
10.1 Framework Conditions
Schindler is not responsible for supporting or performing product manufacture. Schindler is not liable for damage or production errors, and its work should be considered merely recommendations to the Principal regarding product and interface design. The Principal alone is responsible for decisions on the implementation of design recommendations.
Schindler will be liable only if the Principal can show that Schindler has been grossly negligent. There will be no damage claims against Schindler in cases of minor negligence.
The scope of Schindler’s liability is limited to the net order value.
Compensation claims against Schindler lapse six months after the Principal becomes aware of the damage and no longer than three years after the service is provided.
No recourse claims will be filed against Schindler under the “Product liability” title of the Austrian Product Liability Law (Produkthaftungsgesetz, or PHG) unless the party seeking recourse can show that the fault was caused in Schindler’s sphere of responsibility and was due to gross negligence at least.
PROPERTY RIGHTS, USE
11.1 Ownership of Services
All services and results of Project Stages 1 to 4, and thus conceptual design in particular and its detailing, etc. remain the property of Schindler, as do any prototypes, etc., and can be reclaimed by Schindler at any time. The Principal receives only a right of use to use the product properly. All copyrights and thus rights to process, change, exploit, reproduce, and distribute the material remain with Schindler.
11.2 Right of Return for Prototypes
All prototypes that are not final prototypes will be returned to Schindler as soon as the final prototype(s) are delivered. No special request need be made.
11.3 Transfer of Usage Rights
By paying the agreed-upon compensation in full, the Principal obtains the right to use the project subject for the agreed-upon purpose. The Principal does not obtain exploitation rights.
11.4 Changes to Projects
The Principal or third parties working on the Principal’s behalf may modify or process Schindler projects only with Schindler’s express approval.
11.5 Exceptional Usage Rights
If the use of the project subject goes beyond the contractually agreed-upon purpose and scope, prior approval must be obtained from Schindler. Approval must be in writing. In such a case, Schindler is entitled to separate compensation of a suitable amount.
11.6 Violation of Usage Rights
The Principal is liable to Schindler for any use of the project subject that does not comply with this contract. The amount in question will be twice that appropriate for such use. The assertion of other claims and entitlements remains unaffected.
Schindler is entitled to mark all project subjects with its name and company logo. The Principal will receive no compensation for such marking.
11.8 Use of References
Moreover, Schindler is entitled to refer to its business relations to the Principal on its own advertising media, especially its homepage, using name and company logo – unless this privilege is revoked in writing – and to projects created (references). DATA PROTECTION AND CONFIDENTIALITY
Schindler and the Principal agree to absolute confidentiality with respect to third parties concerning knowledge obtained in the course of the business relationship. This obligation will be transferred to staff, vicarious agents, assistants, etc.
The Principal agrees that the personal data received in the course of fulfilling the contract may be stored and processed by Schindler’s automatic system.
COMPETITION, CUSTOMER PROTECTION, AND STAFF CLAUSE
The Principal is aware that Schindler has concluded competition, customer protection, and staff clauses with all of its staff. Because of the knowledge provided and skills taught to the staff in question, and the associated specialist knowledge (among other concerns), the Principal agrees to neither directly poach Schindler staff nor provide them with direct employment nor grant contracts to a self-employed Schindler staff member and in this manner enter into a business relationship with a former Schindler employee. A business relationship between the Principal and a Schindler employee or former employee exists even if the employee or former employee is employed by or does self-employed work for the Principal as part of a corporate relationship or exerts significant influence on the corporation in question. Such a relationship exists even if the Principal is unaware that the person in question is or was a Schindler employee. In such a case, the cease and desist obligation will be enforced as soon as the Principal becomes aware of the relationship or former relationship of the person to Schindler.
13.2 Contractual Penalty
If the contract is violated, a contractual penalty equal to three times the amount of the average net contract value of all contracts Schindler has performed for the Principal will be imposed; Schindler remains entitled to assert claims beyond this amount.
13.3 Validity of Protection Against Competition
The Principal takes explicit notice of the fact that the competition, customer protection, and staff clauses are equally applicable to DOMINIC SCHINDLER CREATIONS GMBH (FN 304074v), headquartered in A-6900 Lochau, Austria; DOMINIC SCHINDLER CREATIONS AG (CH-020.4.044.317-0) headquartered in CH-8004 Zürich, Switzerland, and DOMINIC SCHINDLER CREATIONS GMBH (HRB 251045) headquartered in DE-80804 Munich, Germany.
14.1 Choice of Law
This agreement is governed solely by the law applicable at Schindler’s headquarters (without forward referral). UN commercial law does not apply.
14.2 Place of Performance
The place of performance for both Schindler’s services and compensation is Schindler’s headquarters.
15.1 Severability Clause
Should one or more provisions of these TAC be or become invalid because they violate mandatory law, the validity of the remaining provisions will remain unaffected. In such a case, the invalid clause will be replaced according to the interpretation rules of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, or ABGB).