1. Preamble
In force from 1 January 2024
(1) These general terms and conditions (the Terms) apply to all business dealings between SECA SECURITY GmbH (the Company) and its customers (the Client), unless expressly agreed otherwise in writing with a particular Client in an individual case. This applies in particular to follow-on orders, even where the Terms are no longer referred to when they are placed.
(2) Contracts and declarations of legal intent are concluded exclusively on the basis of the Terms below. Deviating conditions of the Client do not become part of the contract unless their application has been separately negotiated with the Client in an individual case and expressly agreed in writing. Other declarations — in particular the mere reference to third-party conditions in cross-offers — or acts of contractual performance by the Company do not constitute consent to contractual conditions deviating from these Terms.
(3) Amendments and additions to the Terms require written form to be effective. Verbal side agreements are invalid. A mutual departure from the written-form requirement also requires written form.
(4) The terms consumer and entrepreneur have the meanings given to them by the Austrian Consumer Protection Act (KSchG).
2. Conclusion of contract and prices
(1) Offers made by the Company are always without obligation. Where no written contract is concluded, orders are accepted either by order confirmation or by actual performance. In those cases the contractual scope of services is determined exclusively by the content of the order confirmation or, in the absence of one, by the content of the invoice. If the order confirmation or invoice deviates from the order, the Client is deemed to have consented unless the Client objects within 7 days of receipt.
(2) Offers, orders or purchase orders placed by the Client are irrevocable unless the Client has expressly declared them to be made without obligation.
(3) If an order is placed with the Company without a fee being agreed, the Company is entitled to charge the fee set out in its current price list or, in the absence of one, the fee customary in the business for that service. If the service in question is not included in the price list, the fee customary in the business likewise applies.
(4) Unless expressly stated otherwise, prices are exclusive of value added tax at the applicable rate. If the Client is a consumer within the meaning of the KSchG, prices are inclusive of statutory value added tax and of all other levies and surcharges.
(5) If the Client is an entrepreneur, the Company is entitled to charge a price higher than the one agreed if the cost basis existing at the time the order was placed changes after the contract is concluded. The cost basis includes in particular wage costs arising from collective agreements in the industry or from in-house settlements, as well as costs such as those for working materials, energy, transport, subcontracted work and financing. If these change, the Company is entitled to raise its prices accordingly.
(6) Minor deviations from the subject of the service by the Company, and additional security-related services that prove necessary in order to carry out the order, are deemed approved in advance.
(7) The carrier (SECA Security GmbH) accepts sealed safebags in undamaged condition without inspecting their contents. The Client confirms that it has duly complied with all import and customs regulations.
3. Scope of services, warranty and duty to cooperate
(1) The Client bears the unrestricted risk of placing the order and is obliged to indemnify and hold the Company harmless against third-party claims arising from the performance of the order placed.
(2) Unless a further-reaching quality standard has been agreed in writing, the Company warrants only that the services it provides are of a quality customary for services of the same kind and reasonably to be expected by the Client.
(3) In the absence of specific instructions from the Client, all contractual performance (the deployment of equipment, personnel and vehicles) is at the Company's free discretion. The Company is entitled to fulfil the obligations it has assumed under the contract not only through its own personnel but also through third parties. The decision as to which individuals are deployed to carry out a particular order rests exclusively with the Company. Unless otherwise agreed in writing, the Client is entitled neither to demand performance by particular individuals nor to refuse performance by individuals engaged by the Company.
(4) Should a demand or instruction of the Client concerning the execution of the order give rise to an immediate and serious danger to the life or health of the personnel deployed or to the integrity of the operational equipment — in particular because the information or planning passed to the Company by the Client was inadequate, because too few security personnel were provided for, or because the Client made inadequate operational equipment available — the Company is entitled either to deploy more personnel or auxiliary staff than agreed, at its own discretion, and to invoice the Client for the additional expense, or to abandon performance of the contract. The same applies where the Client's demands or instructions are changed during the execution of the order and an immediate and serious danger to the life or health of the personnel deployed or to the integrity of the operational equipment thereby becomes foreseeable. If the Company decides to abandon performance, the Client must pay the full fee.
(5) Where technical aids such as keys, access cards and the like are required in order to carry out the order, the Client must provide these free of charge, in good time and in the necessary quantity. If that cooperation is not forthcoming, or if performance of the contract by the Company is frustrated for reasons within the Client's sphere, the Client remains obliged to pay.
(6) Should administrative offences become necessary in order to perform the order or to guarantee the safety of persons, the Client undertakes to reimburse fines imposed for such offences, in particular for speeding and illegal parking.
(7) Where unforeseen events make the provision of the agreed service impossible, or where such events give rise to a serious danger to the life or health of the personnel deployed or to the integrity of the operational equipment, the Company is entitled to refuse to provide the agreed services. This applies in particular to cases of force majeure, strikes, war or epidemic events. In these cases too the Client remains obliged to pay the agreed fee.
(8) If, in connection with the order — in particular in the course of close protection or property protection measures — the Client becomes aware of circumstances or investigations relevant to criminal or security policing, the Client must inform the Company of them without delay.
4. Payment terms and default
(1) The Company is entitled to require a reasonable payment on account in advance.
(2) Unless otherwise agreed in the individual contract, payment is due within 7 days of receipt of the invoice.
(3) If the Client is in default of payment, the Company is entitled to charge default interest amounting to 15 % of the invoice total.
(4) In the event of default the Client further undertakes to reimburse the creditor's reminder and collection costs insofar as they are necessary for appropriate legal enforcement. For the Company's own reminder letters a flat rate of € 10 per letter is agreed. If the Company engages a debt collection agency, the Client undertakes to reimburse its fees. If the Company engages an authorised legal representative, the scheduled costs under the Austrian Lawyers' Tariff Act (RATG) or the General Fee Criteria (AHK), as applicable from time to time, are to be reimbursed.
(5) Furthermore, if the Client is in default of payment, the Company is entitled at its own choice either to suspend all services to the customer until payment has been made in full, or to terminate the contractual relationship with immediate effect following a written reminder and the setting of a reasonable grace period.
(6) The assertion of further claims arising from default of payment remains unaffected.
5. Contact addresses
(1) Before the order begins, the Client is obliged to provide in writing the details — name, address and telephone number — of the contact persons relevant to the Company's performance of its contractual obligations.
(2) Changes of contact persons or of their contact details must be reported to the Company by the Client without delay. If this is not done, or is not done in good time, all resulting disadvantages are borne by the Client.
6. Non-solicitation
(1) The Client may not employ, itself or through third parties, any person engaged by the Company to perform the service, for the duration of the contract and for one year after its expiry.
(2) If the Client breaches this agreement, it is obliged to pay a penalty amounting to ten times the monthly fee last invoiced, but in any event at least € 5,000.
7. Cost estimates
(1) Cost estimates issued by the Company are non-binding.
(2) A fee paid for a cost estimate may be credited if an order is placed on the basis of that estimate.
(3) Should cost increases of more than 15 % over the cost estimate arise after the order has been placed, the Client will be notified without delay. Where unavoidable cost overruns of up to 15 % arise, these may be invoiced without further notification.
8. Withdrawal by the Client and cancellation fees
(1) Express or tacit withdrawal from the contract by the Client gives rise not only to the obligation to reimburse the Company for expenses already incurred, but also entitles the Company to demand cancellation fees from the Client in accordance with the provisions below.
(2) If withdrawal occurs between the 14th and the 3rd day before the agreed start of services, the cancellation fee amounts to 50 % of the fee owed under the agreement reached, plus statutory value added tax.
(3) If withdrawal occurs within 2 days before the agreed start of services, or on the day services begin, the cancellation fee amounts to 100 % of the agreed fee. Any contract fee is calculated on the total amount and is in any event collected in full.
(4) If withdrawal occurs earlier than 14 days before the agreed start of services, it is free of cancellation charges. The Company's entitlement to demand reimbursement of expenses incurred naturally remains unaffected in this case too.
(5) For the calculation of time limits, the day on which the declaration of withdrawal reaches the Company is decisive. A 14-day default by the Client in its own obligations — in particular payments or preparatory acts stipulated in the contract — entitles the Company, at its free choice, either to treat that circumstance as a tacit withdrawal and to invoice the cancellation fee, or to insist on performance of the contract. If the Company elects to treat the default as a tacit withdrawal, the 14th day after the due date of the obligation with which the Client is in default is the event triggering the time limit for calculating the cancellation fee.
(6) If the Client is a consumer, the right of withdrawal is governed by the relevant provisions of §§ 3, 3a and 4 KSchG and, in the case of distance contracts and contracts concluded off business premises, by the 3rd section of the FAGG.
(7) If the Client is a consumer, it may also withdraw from the contract or from its offer to contract where it made its declaration of intent directed at concluding a consumer transaction (order, purchase order etc.) neither on premises used permanently by the Company for its business purposes nor at a stand used at a trade fair or market. Withdrawal may be declared until the contract comes into being or within one week thereafter. The period begins when the contract is handed over, but at the earliest on conclusion of the contract. To be legally effective, withdrawal requires written form and must have been dispatched to the Company within the period stated above. The date of the postmark is decisive. There is no right of withdrawal where the Client itself initiated the business connection with the Company or its agents for the purpose of concluding a contract, or where the contract was not preceded by a discussion between the parties or their agents.
9. Withdrawal by the Company
(1) In the event of the customer's default in acceptance, or for other important reasons such as in particular the customer's insolvency or the dismissal of insolvency proceedings for lack of assets, as well as in the event of the customer's default of payment, the Company is entitled to withdraw from the contract provided it has not yet been performed in full by both parties.
(2) If the Client is at fault for the circumstances that led to the Company's withdrawal, the Company is entitled to demand liquidated damages of 80 % of the gross invoice amount. The right to demand compensation for the damage actually incurred remains unaffected.
10. Liability of the Company
(1) The Company is liable for damage suffered by the Client through its own culpable conduct or the culpable conduct of persons attributable to it only in cases of intent and gross negligence. If the Client is an entrepreneur, it must in every case prove the existence of intent or gross negligence.
(2) Liability for slight negligence exists only for personal injury to consumers (§ 6 para. 1 no. 9 KSchG).
(3) Towards entrepreneurs always, and towards consumers only in the case of slight negligence, the Company's liability for indirect and consequential damage, lost profit, pure financial loss and damage resulting from business interruption is excluded.
(4) Liability for each damaging event is, towards entrepreneurs, always limited to the amount of the relevant fee. For consumers this applies only in the case of slight negligence and not to personal injury.
(5) The Client may demand monetary compensation on the grounds of damages only where compensation in kind by way of improvement, replacement or supplementation of the service is not possible and practicable.
(6) If the Client is an entrepreneur, claims for compensation lapse within 6 months of becoming aware of the damage and the party causing it, and in any event within 3 years of the service being rendered.
(7) The liability principles set out in paras. 1 to 6 apply mutatis mutandis in the internal relationship between the Client and the Company also in the event that the Client has been or is held liable on account of culpable conduct of the Company or of persons attributable to it.
11. Prohibition of assignment
The assignment to third parties of receivables and claims of the Client against the Company is not permitted.
12. Prohibition of set-off
(1) Set-off against counterclaims, in particular against those disputed by the Company or not established by final judgment, is excluded.
(2) This does not, however, apply towards consumers in the event of the Company's insolvency, nor to counterclaims that are legally connected with the claim, have been established in court or have been acknowledged by the Company.
13. Waiver of challenge
The right to challenge the contract on the grounds of error or of laesio enormis (reduction below half the true value) is excluded.
14. Index-linking
(1) All claims of the Company are index-linked to the 2020 Consumer Price Index.
(2) The reference figures are the index figures for the month of January 2024. Only after the index falls or rises by more than 3 % does the entire change take effect. Should that index cease to be published, the index replacing it or another comparable index is to be used.
15. Creditworthiness
Should the Company learn of adverse information about the Client's financial position after the contract has been concluded, the Company is entitled to demand either immediate payment or bank security for the total fee. In that case the Company is also entitled to withdraw from the contract.
16. Severability
Should individual provisions of the Terms be inadmissible or ineffective, this does not affect the remaining provisions. In that case the inadmissible or ineffective provision is deemed replaced by an effective provision that comes closest to the economic purpose of the inadmissible one.
17. Governing law and place of jurisdiction
(1) The application of Austrian law is agreed, whereby the application of the UN Convention on Contracts for the International Sale of Goods is expressly excluded.
(2) The exclusive place of jurisdiction is Vienna. For legal disputes falling within the competence of the district courts, the jurisdiction of the District Court for 1010 Vienna is agreed.