General Terms and Conditions
§ 1 Scope of Application, Orders
1. In the absence of any written agreement to the contrary, these General Terms and Conditions will constitute the legal basis of all current and future business relationships between the customer and us. They shall apply by analogy also to the provision of services by us, even if these deliveries and/or services are carried out without special reference to these General Terms and Conditions. Customer’s terms and conditions, if any, will not be accepted, and we are not required to specifically object to them. Our General Terms and Conditions shall be deemed accepted by the customer as soon as he places an order with us and upon acceptance of our service at the latest. Even our sending of a confirmation of order shall not be deemed an acceptance of the customer’s contract terms.
2. All agreements as well as all amendments and side agreements shall be confirmed in writing and shall apply only to a particular case.
3. Our offers are non-binding and without engagement. Any changes in brochures and construction will be reserved. We reserve the right to alter and particularly to improve the design and the technical data of the deliverables to the extent the customer can be reasonably expected to accept such an alteration.
4. Customer’s orders, which shall be placed by duly signing our offer at the designated place, will be accepted only if we confirm the order in writing or by delivery and service. Customer is bound by his offer for 30 days. We may accept only parts of orders or refuse orders without stating any reason.
§ 2 Prices, Payment, Delivery
1. Our prices are binding for two months after sending the confirmation of order. If our production costs are subject to changes thereafter until the date of delivery, in particular due to changes in prices of upstream suppliers, wages, salaries, etc., we may adjust the agreed price accordingly. All prices are ex works Vienna exclusive of VAT, excluding transport costs and any ancillary services. All additional expenses, e.g. packaging, loading, customs duties, taxes and duties, shall be borne by the customer. We will take back any packaging only if expressly agreed.
2. The risk will transfer to the customer upon delivery of the goods to the forwarder or carrier, however, at the latest when the goods leave the plant or the warehouse. This shall also apply if we deliver goods free destination using our own or third-party vehicles. We will be liable for any transport damage only if such damage was caused by our intent or crass gross negligence. The goods will be insured only upon the customer’s express request and at his cost and expense. Deliveries on call shall be deemed called one year after they were ordered at the latest.
3. Our invoices shall be payable within 30 days after the issue date, notwithstanding the date of receipt of the goods or the date of processing, payments to be made in cash or by bank transfer free and clear of any charges and deduction to the account indicated by us. Discounts only apply on the condition that payment is made fully and in due time. In the event of full or partial default of payment the respective list price shall apply, due for payment on the first day of delay, less the installments already paid. This also applies in case of full and timely payment if insolvency proceedings are opened on the contracting party’s assets and prior payments are annulled by the insolvency administrator. Place of performance for the customer’s payment shall be Vienna. A payment shall be deemed made on the date on which we can dispose of the amount paid. Bills of exchange and checks can be accepted only if agreed in advance and on account of payment. They shall constitute a payment only after they were honored. We reserve the right to return bills of exchange and checks at any time and we may, in any event, demand further securities. All related costs shall be borne by the customer.
4. If the term of payment is exceeded, default interest at a rate of 6 % above the relevant base interest rate within the meaning of Section 1 of the 1st Euro Judicial Accompanying Act and at least 12 % p.a. will be charged. Even if the customer is in default with only one payment, his entire outstanding balance from this or other transactions will become immediately payable without deduction. Incoming payments will generally be credited towards the oldest debt plus default interest. All dunning, information and other costs incurred to recover a debt shall be borne by the customer to the extent these costs are required to enforce our rights.
5. If the customer is in default with payment or any other of his services, we – notwithstanding any other rights – may retain our deliveries and/or services from this or other contracts concluded with the customer until the agreed counter-service has been provided, thereby maintaining the still unexpired delivery deadline, or we may rescind the contract after an appropriate grace period has expired and assert damages for non-performance. In the latter case, we may demand and/or retain the agreed deposit, however, at least 15 % of the price, as minimum penalty. Any damage in excess of the penalty shall be compensated in addition.
6. If there occur any circumstances which adversely affect, aggravate or jeopardize our service or delivery, we may refuse the delivery and/or service in whole or in part, and the customer may not assert any damage claims. (Partial) services already provided shall be paid or returned freight paid at our election.
7. We may, in any event, provide partial services and issue appropriate partial invoices for the service provided. We are required to provide the remaining services only after payment for the partial services has been made.
8. Customer may not retain or set off payments under warranty, damages or other claims, unless these claims have been established by a court or accepted by us. The customer’s rights and claims against us may not be transferred or pledged to third parties.
9. Delivery dates and deadlines for the provision of services are non-binding, unless agreed as binding in writing. In case of events of force majeure or other circumstances which are unforeseeable or dependent on a party’s will and will result in delayed delivery, we may either rescind the contract in whole or in part or extend the delivery period as required by the circumstances. In these events, the customer is expressly prohibited from asserting damages or rescinding the contract. In case of delayed deliveries and services for which we are responsible, the customer may rescind the contract only after a reasonable grace period of at least one month the customer granted by registered letter expired without success.
10. Any installation or other necessary assembly work will be carried out by our qualified staff against separate compensation at the customary rates, unless expressly otherwise agreed upon execution of the contract. The customer confirms the proper execution of installation and his final acceptance of the goods by signing the installation certificate.
§ 3 Liability, Warranty
1. Any liability for damage the customer may have suffered due to a breach of contract on our part, whether direct or indirect damage, lost profits or consequential damage caused by defect, shall be excluded beyond the scope of application of the Product Liability Act, unless we demonstrably acted with intent or crass gross negligence; the burden of proof, also regarding culpable conduct, shall lie with the customer. Any liability for slight negligence, the reimbursement of consequential damage and pecuniary damage, non-achieved savings, loss of interest and of indirect damage as well as damage from claims third parties are asserting against the customer shall be excluded. Any liability shall be excluded if any terms and conditions for the installation and use (e.g. as contained in the installation instructions) are not complied with.
2. The information contained in catalogues, brochures and the like and any other written or oral statements shall be relevant only if we expressly refer to them in our confirmation of order. No warranty or other claims may be inferred from information contained in catalogues, brochures, advertising leaflets and written or oral statements which were not expressly incorporated in the contract. Information as to condition and other technical data are non-binding. To the extent this is justifiable, we may alter the technical data of the goods to be delivered and/or of the service to be provided. Any advice or recommendation on our part shall only constitute non-binding guidelines and will not release the customer from his duty to examine the goods as to their intended purpose.
3. The warranty period is three months from transfer of the risk; this applies also to equipment which is firmly connected with a building or to the ground. If the customer asserts a warranty claim, he shall prove that the defect existed already upon delivery. In case of a material defect, we will warrant only by either repairing the goods or delivering a substitute at our election. Consumable parts shall not be covered by warranty and shall be compensated separately. Any warranty for the services provided shall be restricted to the removal of these defects, to the exclusion of any further claims. The warranty period for the (exchange) parts used for the service is three months, and warranty covers only the repair and/or exchange of the required parts free of charge. Rejected goods may be sent back only with our consent.
4. Defects which result from any order and installation not procured by us, insufficient equipment, non-compliance with the installation requirements and user conditions, excessive use of the parts beyond indicated capacity, negligent or incorrect treatment and use of unsuitable operating materials and the like shall be excluded from any warranty; this applies also in case of defects which are caused by the materials made available by the customer. In addition, we disclaim any liability for damage resulting from acts of third parties. We disclaim any warranty for the repair, refitting or alteration of obsolete or third-party goods and for the sale of used goods.
5. Claims under Section 933b Austrian Civil Code (ABGB) will forfeit, in any event, upon expiry of the time-limit set forth in paragraph 3.
6. Any damages the customer may assert against us – provided he has such claims under the above provisions – will, in any event, forfeit within one year after delivery of the goods, unless they are asserted in court within this period.
7. The customer may assert warranty or damage claims against us only if he gives written notice of and proves defects no later than three days after delivery of the goods and/or hidden defects no later than eight days after identification thereof. If goods are directly shipped to third parties, the time-limits applicable to inspection and the obligation to give notice of defects will commence upon receipt of the goods by the third party. The notice of defect shall not affect the customer’s payment obligation and any other agreements.
8. Recourse claims, if any, asserted against us by contracting partners or third parties under the title of product liability within the meaning of the Product Liability Act shall be excluded, unless the party entitled to assert recourse claims proves that the mistake was within our control and caused by at least crass gross negligence.
9. We disclaim any liability in case customizations ordered infringe upon third-party patent rights, trademark rights, utility model rights, copyrights, reproduction or other rights. If such claims are asserted by third parties, the customer shall hold harmless and indemnify us.
§ 4 Retention of Title
We will retain exclusive title to the goods delivered until full payment of the purchase price and of all of our other claims under the business relationship, and the customer may sell these goods only in the course of ordinary business. Pending full payment, the customer may not pledge the goods or assign the claim from a resale thereof, and the customer offers us already now an assignment of the purchase price claim against his customers to secure all of his obligations from the business relationship. The assignment covers the value of the goods we delivered subject to a retention of title; this offer shall be deemed accepted upon delivery of the goods. The customer may collect his claim against his customer only as long as he satisfies his obligations towards us. We may require the customer to give notice to his customer by registered letter that his claim was assigned to us and that payment equal to the assigned amount with debt-discharging effect may be made only to us.
§ 5 Place of Performance, Place of Jurisdiction
1. Austrian substantive law shall apply. The relevant Ö-Normen shall apply to these General Terms and Conditions on a subsidiary basis. The application of the UN Sales Convention shall be excluded.
2. Place of performance shall be Vienna and place of jurisdiction shall be Vienna-Inner City. However, we may also sue the customer at his general place of jurisdiction.
3. Should any or several terms of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining terms hereof. The invalid term shall be replaced by a valid term which closest reflects the economic purpose of the invalid term. In case of consumer business within the meaning of the Consumer Protection Act, these General Terms and Conditions shall be valid, unless they are inconsistent with mandatory provisions of the Consumer Protection Act.