1.1. These General Terms and Conditions (hereinafter GTC) are generally designed for legal transactions between companies. If, in exceptional cases, they are also used as a basis for legal transactions with consumers within the meaning of the Consumer Protection Act, they shall only apply insofar as they do not contradict mandatory provisions.
1.2. These GTC shall apply to all legal transactions and legal relationships between the Client and the Contractor, not only for the first legal transaction, for example, but the application of the GTC shall also be expressly agreed for all additional and subsequent orders as well as further transactions.
1.3. Purchasing or other terms and conditions of the client are not valid and are hereby expressly contradicted. The Contractor expressly declares that it only intends to conclude contracts on the basis of its General Terms and Conditions. If, in exceptional cases, the application of the Client’s GTC is agreed in writing, their provisions shall apply only to the extent that they do not conflict with these GTC. Provisions in the GTC that do not conflict with each other shall continue to exist alongside each other.
1.4. The client declares that it had the opportunity to acquaint itself with the contents of the GTC prior to the conclusion of the contract and that it agrees with its contents.
1.5. Amendments and supplements to these GTC must be made in writing to be legally effective. The requirement for the written form may also only be altered in writing. It is noted that there are no ancillary agreements.
2. OFFERS, CONCLUSION OF CONTRACT
2.1. Offers of the contractor are subject to change and non-binding.
2.2. The Contractor accepts offers or orders of the Client by written order confirmation or by delivery of the object of purchase or by performance of the service.
2.3. The information about the contractor’s services and products given in catalogues, price lists, brochures, company information material, leaflets, advertisements on trade fair stands, in circulars, advertising mailings or other media is non-binding unless it is expressly declared in writing to be part of the contract.
2.4. The contractor’s cost estimates are always prepared without guarantee of completeness and correctness.
3. DELIVERY/PERFORMANCE DEADLINES
3.1. Delivery/service deadlines are non-binding unless they have been expressly agreed as such in writing in the order confirmation or in the individual contract.
3.2. If, after the order has been placed, the order is amended or supplemented for whatever reason, the delivery/service period shall be extended by a reasonable period of time.
3.3. In the absence of any other agreement, the period of delivery shall begin at the latest of the following dates:
- Date of order confirmation
- Date of fulfilment of all technical, commercial and other preconditions incumbent on the Client.
- Date on which the contractor receives an agreed down payment or security deposit.
3.4. If the contractor is hindered in the fulfilment of its obligations by the occurrence of unforeseeable circumstances or circumstances for which the contractor is not responsible, such as operational disruptions, governmental measures and interventions, energy supply difficulties, failure of a supplier who is difficult to replace, strike, obstruction of traffic routes, delay in customs clearance or force majeure, the delivery/performance period shall be extended to a reasonable extent. It is irrelevant whether these circumstances occur with the contractor itself or with one of its suppliers or subcontractors.
3.5. If the fulfilment of the contract becomes impossible due to reasons for which the contractor is not responsible, the contractor shall be released from its contractual obligations.
3.6. The contractor is entitled to make and charge for partial or advance deliveries. If delivery on request has been agreed, the object of performance/purchase shall be deemed to have been requested at the latest six months after the order.
4.1. If an order is placed without a prior offer or if services are performed which were not expressly included in the order, the Contractor may claim that remuneration which corresponds to its price list or its usual remuneration.
4.2. The Contractor shall be entitled to demand a higher remuneration than the agreed remuneration or purchase price if the basis of calculation existing at the time the order was placed, such as raw material prices, the exchange rate or personnel costs, changes after the conclusion of the contract.
4.3. All prices and charges are subject to the applicable statutory value added tax and are ex warehouse. Packaging, transport, loading and shipping costs as well as customs and insurance shall be borne by the Client. Packaging will only be taken back if expressly agreed.
4.4. Unless otherwise agreed, half of the remuneration/purchase price shall be due upon receipt of the order confirmation and the remainder shall be due upon delivery or readiness for collection as well as upon receipt of the invoice and shall be free of charges and deductions.
4.5. Payment is considered to be on time if the contractor can access it. Payment commitments of the Client, for example on bank transfer vouchers, are not binding.
4.6. In the event of default in payment, 12% p.a. will be agreed. The contractor shall be entitled to claim interest in excess of this amount. Expedient and necessary costs incurred as a result of the delay in payment, such as expenses for reminders, collection attempts, storage costs and any court or out-of-court lawyer’s fees shall be reimbursed to the Contractor.
4.7. The benefits agreed upon conclusion of the contract, such as discounts and rebates, are granted on condition of timely and complete payment. The Contractor shall be entitled to charge for any delay in even partial performance.
4.8. The assertion of a right of retention and plea of non-performance of the contract by the Client in the case of alleged defects is excluded. Offsetting by the Client with counterclaims or with alleged price reduction claims is only permissible if the claim has been legally established or this is not disputed by the Contractor.
4.9. If the Client is in default with an obligation arising from the contractual relationship or any other payment obligation towards the Contractor, the Contractor shall be entitled, without prejudice to any other rights, to suspend its obligation to perform until payment by the Client and/or to make use of a reasonable extension of the delivery period; to declare due all outstanding claims arising from this or any other legal transactions and to recover any items delivered, without this releasing the Client from its obligation to perform. These actions shall only constitute a withdrawal from the contract by the contractor if this has been expressly declared.
4.10. Should the financial circumstances of the Client deteriorate, the Contractor shall be entitled to demand immediate payment of the agreed remuneration or the purchase price and to execute the order only against advance payment.
4.11. If a periodically chargeable fee, e.g. for service or maintenance services, is agreed, this shall be due annually at the beginning of a calendar year. If the contract begins or ends during a year, this remuneration shall be due on a pro rata basis. This fee is value-assured according to the 1996 consumer price index, whereby the month in which the service or maintenance contract was concluded serves as the starting point. If the CPI 1996 is no longer published, it shall be replaced by the CPI that follows or most closely corresponds to it. Furthermore, the Contractor shall be entitled to adjust a periodically chargeable fee for the reasons stated in clause 4.2.
4.12. Costs for travel, daily and overnight allowances shall be invoiced separately in the case of periodically chargeable remuneration. Travel time shall be considered as working time.
5. TRANSFER OF RISK AND DISPATCH
5.1. The risk shall pass to the Client as soon as the Contractor has the object of purchase/the work ready for collection in the factory or warehouse, irrespective of whether the goods are handed over by the Contractor to a carrier or transporter. Shipment, loading and unloading as well as transport shall always be at the risk of the Client.
5.2. The Client shall approve any appropriate method of dispatch. Transport insurance shall only be taken out upon written order of the Client.
5.3. The Contractor shall be entitled to have the packaging and shipping costs as well as the remuneration or the purchase price collected from the Client on a cash on delivery basis in the event that the Client’s financial circumstances deteriorate or a credit limit agreed with the Contractor is exceeded.
5.4. The place of performance shall be the Contractor’s premises.
6. RETENTION OF TITLE AND RIGHT OF RETENTION
6.1. All goods and products shall remain the property of the contractor until full payment has been made by the Client, even if the items to be delivered or manufactured are resold, modified, processed or mixed.
6.2. Until all claims of the Contractor have been paid in full, the object of performance/purchase may not be pledged, transferred by way of security or otherwise encumbered with the rights of third parties. In the event of seizure or other claims, the Client shall be obliged to point out the Contractor’s right of ownership and to notify the Contractor without delay.
6.3. The Client hereby assigns all claims and rights to which it is entitled from the resale, processing, blending or other utilisation of the goods and products by way of payment. The Client shall record this assignment in its books and on its invoices and draw the attention of its debtors to it until the remuneration or purchase price has been paid in full. Upon request, it shall provide the Contractor with all documents and information necessary for the assertion of the assigned claims and entitlements.
6.4. To secure its claims and to secure claims from other legal transactions, the Contractor shall be entitled to retain the products and goods until all outstanding claims from the business relationship have been settled.
7. OBLIGATIONS OF THE CLIENT
7.1. In the event of assembly by the Contractor, the Client shall be obliged to ensure that work can commence immediately after the arrival of the Contractor’s assembly personnel.
7.2. The Client shall be liable for ensuring that the necessary technical prerequisites for the work to be performed or the object of purchase are met and for ensuring that the technical installations, such as supply lines, cabling, networks and the like are in a technically flawless and operational condition as well as compatible with the work to be performed or the objects of purchase to be performed by the Contractor. The Contractor is entitled, but not obliged, to inspect these installations for a separate fee.
7.3. There shall be no obligation to check, warn or clarify with regard to any documents, information or instructions provided by the Client and any liability of the Contractor in this respect shall be excluded.
7.4. The order shall be placed irrespective of any official permits and authorisations that may be required and which the Client must obtain.
7.5. The Client is not entitled to assign claims and rights arising from the contractual relationship without the written consent of the Contractor.
7.6. The Client shall refrain from directly or indirectly employing or otherwise employing an employee or freelancer of the Contractor for a period of one year after the termination of their employment. In the event of non-compliance, a contractual penalty regardless of fault is agreed in the amount of the last gross annual salary or gross annual remuneration of the employee concerned. However, the parties are free to mutually agree in writing on a transfer of employees during the one-year period. Otherwise, the Contractor and the Client are obliged to maintain mutual loyalty.
8.1. The warranty period is limited to six months and begins from the transfer of risk within the meaning of these GTC. This also applies to objects of delivery and performance that are permanently connected to a building or land.
8.2. A warranty is excluded if the technical installations, such as supply lines, cabling, networks and the like are not in a technically flawless and operational condition or are not compatible with the work or objects of purchase to be provided by the Contractor.
8.3. The Contractor shall not be liable for defects caused by faulty assembly or commissioning by the Client or third parties, natural wear and tear, transport damage, improper storage, malfunctioning operating conditions (e.g. insufficient power supply), chemical, electrochemical or electrical influences, failure to carry out necessary maintenance or poor maintenance.
8.4. Notifications of defects and complaints of any kind must be made in writing without delay – otherwise warranty claims will be forfeited – stating the possible causes. Complaints and objections made verbally, by telephone or not immediately will not be considered. After an agreed acceptance has been carried out, any complaints about defects that were detectable at the time of acceptance shall be excluded.
8.5. Complaints and objections shall be made at the Contractor’s registered office, describing the defect as precisely as possible, and the Client shall hand over the goods or work performance which are the subject of the complaint, insofar as the latter is feasible.
8.6. The Contractor shall be entitled to carry out or have any inspection carried out which it deems necessary, even if this renders the goods or workpieces unusable. In the event that this inspection reveals that the Contractor is not responsible for any defects, the Client shall bear the costs of this inspection for a reasonable fee.
8.7. If the objects of performance are manufactured on the basis of information, drawings, plans, models or other specifications of the Client, the Contractor shall only provide a warranty for the execution in accordance with the requirements.
8.8. If the Client makes changes to the delivered object of purchase or works without the Contractor’s prior written consent, then the Contractor’s warranty obligation shall expire.
8.9. If the Client makes changes to the delivered object of purchase or works without the Contractor’s prior written consent, then the Contractor’s warranty obligation shall expire.
8.10. The Client must also prove that a defect existed at the time of handover during the first six months after handover of the item/work.
8.11. All costs incurred in connection with the rectification of defects, e.g. transport, installation, removal and travel costs, shall be borne by the Client. At the request of the Contractor, the Client shall provide the necessary labour free of charge.
9. LIABILITY AND PRODUCT LIABILITY
9.1. The Contractor shall only be liable for damage caused intentionally or by gross negligence. Liability for slight negligence is excluded. The Client shall provide evidence of the Contractor’s culpability.
9.2. Liability for indirect damage, consequential damage, loss of profit, financial loss, damage due to interruption of business, loss of data loss of interest as well as damage due to claims of third parties against the Client is excluded under all circumstances.
9.3. Any liability of the Contractor shall in any case be limited to the amount of the agreed remuneration or the purchase price for the respective order. Contracts accepted by the Contractor shall only be accepted under this limitation of liability. The Contractor’s liability beyond this is expressly excluded. If the total damage exceeds the maximum limit, the compensation claims of individual injured parties shall be reduced proportionately.
9.4. The Client shall inform the Contractor immediately of any defects discovered in the goods or the work, otherwise any claims shall be forfeited. In any event, claims for damages must be asserted in court within six months otherwise they will be forfeited.
9.5. Initially, the Client may only demand improvement or replacement of the item/work as compensation for damages; the Client may only demand immediate monetary compensation if both of these measures are impossible or are associated with disproportionate expense for the Contractor.
9.6. Liability is generally excluded in the event of non-compliance with any conditions relating to installation, commissioning and use or the official approval conditions. The Client is obliged to ensure that operating instructions for the delivered goods or works are observed by all users. In particular, the Client shall train and instruct its personnel and other persons coming into contact with the delivered goods or work accordingly.
9.7. The liability to pay compensation for property damage resulting from the Product Liability Act as well as product liability claims that can be derived from other provisions are excluded to the extent that this is legally possible. The Customer shall be obliged to transfer the exclusion of liability for product liability claims to any of its contractual partners. Any recourse of the Client against the Contractor arising from a claim under the Product Liability Act is excluded. The Client shall take out sufficient insurance for product liability claims and indemnify and hold the Contractor harmless in this respect.
10. PREMATURE TERMINATION OF THE CONTRACT AND ERROR
10.1. If a delivery/service is not possible for reasons for which the Client is responsible or if a Client fails to comply with a legal or contractual obligation incumbent upon it vis-à-vis the Contractor, the Contractor shall be entitled to withdraw from the contract. In this case, the Client shall compensate the Contractor for all resulting disadvantages and lost profit.
10.2. The Client waives the right to contest/adjust this contract on the grounds of error.
11. INDUSTRIAL PROPERTY RIGHTS
11.1. The Client shall be liable for ensuring that any design details, drawings, models or other specifications handed over for production do not infringe the property rights of third parties. In the event of any infringement of property rights, the Client shall indemnify and hold the Contractor harmless.
11.2. Software, execution documents, such as plans, sketches and other technical documents, as well as samples, catalogues, brochures, illustrations and the like shall remain the intellectual property of the Contractor and shall be protected by copyright. Any reproduction, distribution, imitation, adaptation or exploitation and the like not expressly granted is prohibited.
12.1. If the object of performance/purchase also includes software components or computer programs (standard programs or programs or parts of programs individually created for the Client), the Contractor shall grant the Client a non-transferable and non-exclusive right of use of the specific object of performance/purchase with regard to these in compliance with the contractual conditions and documents (e.g. operating instructions).
12.2. Without the prior written consent of the Contractor, the Client is – with the other exclusion of any claims – in particular not entitled to duplicate, modify or make the software available to third parties or to use it for purposes other than the Client’s expressly agreed internal purposes. This also applies to the source code, insofar as this is provided to the Client by the Contractor on the basis of an explicit, written agreement.
12.3. A warranty with regard to the software exists only for the conformity of the software with the specifications agreed upon conclusion of the contract, provided that the software is used in accordance with the installation requirements and complies with the respectively applicable conditions of use. The Contractor does not warrant that the software is of flawless quality or that it will function uninterruptedly or without error. The occurrence of errors cannot be ruled out.
12.4. The selection and specification of the software offered by the Contractor shall be made by the Client, who shall ensure that it is compatible with the technical conditions on site. The Client is responsible for the use of the software and the results obtained from it.
12.5. For software that is to be produced on an individual basis, the performance features, special functions, hardware and software requirements, installation requirements, conditions of use and operation shall result exclusively from the specifications to be agreed in writing between the contracting parties. The Client shall provide the information required for the production of customised software prior to the conclusion of the contract.
13.1. Should any provision of these GTC be or become invalid, this shall not affect the validity of the remaining provisions. Invalid provisions shall be replaced by the contracting parties with a provision that comes as close as possible to the invalid provision and is customary in the industry.
13.2. The place of jurisdiction for all disputes arising from the contractual relationship or future contracts between the Contractor and the Client shall be the court with local jurisdiction for the Contractor’s registered office. The Contractor shall also be entitled to take legal action at the Client’s general place of jurisdiction.
13.3. The contracting parties agree on the application of Austrian law. The application of the UN Convention on Contracts for the International Sale of Goods is excluded by mutual agreeme
Created on 01.07.2017