These General Terms and Conditions (hereafter GTC) are generally designed for legal relationships between companies. In exceptional cases, where they also apply to legal transactions with consumers in terms of the consumer protection law, they only apply to the extent that they are not opposed by obligatory provisions.
These GTC apply to all legal transactions and legal relationships between the client and contractor, and not only to the first legal transaction but also to all subsequent and additional orders as well as subsequent transactions.
Purchase or other business terms of the client are not deemed valid and are hereby expressly objected to. The contractor hereby expressly declares his intention to only commit to contracts on the basis of his GTC. In exceptional cases, where the GTC of the client are agreed to in writing, their provisions only apply to the extent to which they do not collide with these General Terms and Conditions. Non-colliding provisions of the GTCs shall remain side by side.
The client declares that he had an opportunity to acknowledge the contents of the GTC prior to concluding the contract, and that he agrees with its contents.
Changes and additions to these GTC are only effective if made in writing. The written form requirement may also only be waived in writing. It is hereby declared that no side agreements have been concluded.
Offers, conclusion of contract
Offers by the contractor are subject to change and non-binding.
The contractor shall accept offers or orders of clients by way of a written order confirmation or by delivering the sale item or performing the service.
Information regarding the contractor’s services and products which are available in catalogues, price lists, brochures, company information material, pamphlets, notices on exhibition booths, circulars, advertising mail or other media is always non-binding, unless it is expressly declared as a content of a contract in writing.
Cost proposals by the contractor are generally prepared without a guarantee for their completeness and correctness.
Delivery/performance periods
Delivery and performance periods are non-binding unless expressly agreed to in writing as such as part of the order confirmation or individual contract.
In the event that the contract is modified or supplemented after the order has been placed, regardless of the reason, the delivery and performance periods shall be extended by an appropriate time period.
Unless agreed to otherwise, the delivery period shall begin at the earliest on the later of the following:
Date of order confirmation
Date on which all technical, business and other requirements that are within the responsibility of the client have been met
Date on which the contractor receives the agreed-to down payment or security.
In the event that the contractor is prevented from meeting his obligations as a result of unforeseen events or events that are not the responsibility of the contractor, such as business interruptions, government measures and interference, energy supply shortages, loss of a difficult-to-replace supplier, strikes, lack of access to roads, delays related to customs or force majeure, the delivery/performance period shall be extended by an appropriate It does not matter whether these events occur at the contractor or at one of his suppliers or subcontractors.
In the event that it becomes impossible to fulfil the contract for reasons for which the contractor is not responsible, the contractor is released from his contractual obligations.
The contractor is entitled to provide and invoice partial or advance deliveries. Where a delivery on call has been agreed to, the service/sale item is deemed as having been called at the latest six months following the order.
Payment/prices
Where an order is placed without a prior offer, or in the event that services that were not expressly included in the order are performed, the contractor may demand payment corresponding with his price list or the usual payment.
The contractor is entitled to demand a higher payment than the agreed payment or purchase price, if the basis for the calculation which existed at the time the order was placed, such as commodity prices, exchange rate or labour costs, changes after the contract has been concluded.
Prices and payments do not include applicable VAT, and are made available ex factory. Packaging, transport, loading and shipping costs, as well as customs and insurance costs are borne by the client. Packaging will only be taken back if expressly agreed to.
Unless agreed to otherwise, one half of the payment/purchase price is due upon receipt of the order confirmation, with the other half payable upon delivery or provision for pick-up as well as receipt of invoice; no deductions may be applied.
A payment is deemed as timely when the contractor has full control over the funds. Payment dedications by the client, for example on bank transfer slips, are not binding.
___ % p.a. will be applied in the case of payment default. If the contractor utilises an interest rate above this amount, he is also entitled to demand the same. The contractor must receive reimbursement for appropriate and required costs incurred on the cause of the payment default, such as expenses for reminders, credit collection, storage costs and applicable court or out-of-court legal costs.
Privileges agreed to at the time the contract was concluded, such as discounts and rebates, are granted under the condition that payments are made according to schedule and paid in full. The contractor is entitled to re-invoice these discounts and rebates, if a partial performance has gone into default.
The assertion of a holdback right and defence of a non-fulfilled contract by the client in the case of alleged defects is hereby excluded. Offsets applied by the client with counter claims or alleged price reduction claims are only admissible if the claim has been legally determined or is not disputed by the contractor.
In the event that the client defaults on a contractual or other payment obligation, the contractor is entitled – without prejudice of other rights – to suspend his performance obligation until the client has submitted payment and/or can apply an appropriate extension to the delivery period; declare all outstanding receivables from this or other legal transactions as due and payable and, if required, pick up already delivered items; this does not release the client from his obligations. These actions only lead to the withdrawal of the contractor from the contract if the withdrawal was expressly declared.
In the event that the financial circumstances of the client deteriorate, the contractor is entitled to declare the agreed payment or purchase price as being due for immediate payment and to carry out the contract only against advance payment.
Where payment that is invoiced on a periodic basis, such as service and maintenance, has been agreed to, it is due at the beginning of each calendar year. If the contract begins or ends during the year, this payment is to be applied on a pro-rata basis. The value of this payment has been defined in accordance with the consumer price index of 1996, whereby the month in which the service or maintenance contract was concluded is used as the starting base. If the CPI 1996 is no longer published, it shall be replaced by an index that replaces the same or most closely corresponds with the same. Furthermore, the contractor is entitled to adjust payments which are charged on a periodic basis for reasons indicated in item 4.2.
In the case of payments which are invoiced on a periodic basis, costs for travel, daily and accommodation payments will be invoiced separately. Travel time is deemed work time.
Risk assumption and shipment
The client assumes the risk at the point at which the contractor provides the purchase item or work ready for pick-up at the warehouse or plant, regardless whether the contractor submits the item to a freight forwarder or carrier. Dispatch, unloading and loading, as well as transport is always carried out at the risk of the client.
The client hereby approves all types of appropriate shipment types. Transport insurance is only taken out at the written request of the client.
In the case of shipments, the contractor is entitled to collect packaging and shipment costs as well as the payment or purchase price from the client on a C.O.D. basis, insofar as the financial circumstances of the client deteriorate or a credit limit agreed to with the contractor has been exceeded.
The contractor’s plant shall be the place of fulfilment.
Retention to title and holdback rights
All goods and products shall remain the property of the contractor until payment in full has been received from the client; this also applies if the items to be delivered or produced are subsequently resold, changed, machined/processed or combined.
The service/purchase item may not be pledged, transferred as security or otherwise be encumbered with rights of third parties until all of the contractor's claims have been paid in full. In the event of garnishment or other utilisation, the client is required to advise of the contractor’s retention to title and to immediately notify the latter.
The client hereby assigns all claims and rights resulting from the further sale, processing, combining or other use of the goods and products on account of payment. Until the payment or purchase price has been paid in full, the client must note this assignment in his invoices and books, and advise his debtors the same. At the request of the contractor, the client must provide to the latter all documents and information which is required to assert the assigned claims.
For the purpose of securing his claims, including claims from other legal transactions, the contractor is entitled to hold back products and goods until all outstanding receivables resulting from the business relationship have been paid.
Duties of the client
Where the contractor provides installation services to the client, the client is required to ensure that the contractor’s installation crew can begin to work immediately after arrival.
The client guarantees that the required technical conditions are in place for the work or purchase item to be produced, and that technical installations, such as feed lines, cables/wiring, networks and similar are in excellent technical and operational condition, and that they are compatible with the work or purchase items to be produced by the contractor. The contractor is entitled, but not required, to examine these installations against a separate payment.
There are no obligations related to inspections, warnings or providing instructions with regard to the documents, information or instructions provided by the client; therefore liability of the contractor in this regard is hereby excluded.
The order is placed independent of possibly required official approvals and authorisations, which must be obtained by the client.
The client is not entitled to assign claims and rights from the contract without the contractor’s written approval.
Warranty
The warranty period is limited to six months and begins as of the date of risk assumption in terms of these GTC. This also applies to delivery and performance items which are firmly attached to a building or ground.
Warranty is excluded if technical installations, such as feed lines, cables/wiring, networks and similar are not in excellent technical and operational condition or are not compatible with the work or purchase items to be produced by the contractor.
No warranty claims exists in the case of defects which are the result of improper handling or excessive strain, if statutory or the contractor’s operating or installation requirements are not adhered to; if the delivery item was produced according to client specifications and the defects can be traced back to these specifications or drawings; in the event of faulty installation or start-up by the client or third parties, in the event of natural wear and tear, transport damages, improper storage, operating conditions which damage functionality (e.g. insufficient power supply), as well as chemical, electro-chemical or electrical influences, and failure to conduct the required repairs or bad maintenance.
Notices of defects and complaints of all kinds must be immediately submitted in writing, along with an indication of possible causes; otherwise the warranty claims shall be forfeited. Notices of defects and complaints submitted verbally, by telephone or with delay will not be considered. Following the completion of an agreed-to acceptance, notices for defects which were detectable at the time of acceptance are not allowed.
Notices of defects and complaints must be carried out at the headquarters of the contractor along with a detailed description of the defect, and the client must submit the goods or plant service which form the subject of the notice, insofar as this is possible.
The contractor is entitled to commission or have carried out the inspections which he deems required, even if it means that the goods or work pieces will no longer be usable. In the event that the inspection shows that the contractor is not responsible for any errors, the client is responsible for the cost of this inspection against commensurate payment.
In the event that delivery items are produced on the basis of specifications, drawings, plans, models or other types of client specifications, the contractor will only warrant the completion according to the conditions.
In the event that the client makes changes to the submitted purchase items or works without the prior written approval of the contractor, the contractor's warranty obligation lapses.
If asserting secondary warranty claims, the contractor is entitled, at his discretion, to avert a substitution request through a price reduction claim, insofar as it does not concern any significant and non-repairable defects.
The client must also prove that a defect existed at the time of transfer within the first six months as of the transfer of the item/work.
All costs associated with the repair of a defect, such as transport, unloading, loading and travel costs are borne by the client. At the request of the contractor, the client must provide the required personnel free of charge.
Liability and product liability
The contractor is only liable for damages resulting from intentional or grossly negligent action. Liability for slight negligence is hereby excluded. The client must provide proof that the contractor was at fault.
Liability for indirect damages, subsequent damages, lost profits, asset losses, damages from business interruptions, loss of data, loss of interest rate as well as damages through the claims of third parties against the client are in any case excluded.
The contractor’s liability is in any case limited to the amount of the agreed-to payment or the purchase price for the respective contract. Contracts assumed by the contractor are only assumed subject to these liability restrictions. Any additional liability by the contractor is hereby expressly excluded. In the event that total damages exceed the maximum limit, the compensation claims of individual claimants shall be reduced proportionately.
The client must immediately inform the contractor of discovered defects related to the goods or work; otherwise all claims shall be forfeited. Claims for damage compensation must be asserted in court within six months; otherwise they shall be forfeited.
Initially, the client may only demand damage compensation in the form of items/work being improved or replaced; only if these options are impossible or associated with disproportionate expenses on the part of the contractor, is the client entitled to demand immediate cash compensation.
In the event of non-compliance with the conditions for installation, start-up and operation or statutory approval conditions, liability is generally excluded. The client is required to ensure that all users observe the operating manuals for the delivered goods or works. In particular, the client must train and provide instruction to his staff and other persons coming into contact with the delivered items/works.
The obligation to provide replacements for material damages resulting from the product liability act, as well as product liability claims which are derived from other provisions, are excluded where legally possible. The ordering party is required to transfer the exclusion of liability for product liability claims to the other contract partners. Recourse by the client against the contractor resulting from an utilisation according to the product liability law is hereby excluded. The client must take out sufficient insurance to cover product liability claims and indemnify the client from all claims in this respect.
Premature termination of contract and error
Where a delivery/service has been made impossible for reasons for which the client is responsible, or if the client does not comply with a statutory or contractual obligation vis-a-vis the contractor, the contractor is entitled to withdraw from the contract. In this case the client must reimburse the contractor for all resulting disadvantages and lost profits.
The client hereby waives the objection against or adjustment of this contract as a result of an error.
Industrial property rights
The client guarantees that design specifications, drawings, models or other specifications provided for production purposes do not interfere with proprietary rights of third parties. Where proprietary rights are breached, the client hereby indemnifies and holds the contractor harmless.
Along with samples catalogues, brochures, illustrations and similar, software, execution documents such as plans, diagrams and other technical documents shall remain the intellectual property of the contractor and are protected by copyright laws. Copying, distribution, duplication, processing or utilisation and similar actions are not permitted unless expressly approved.
Software
In the event that the service/purchase item also includes software components or computer programs, the contractor grants to the client, subject to compliance with contract terms and documents (e.g. operating manuals...), a non-transferable and non-exclusive right of use at the agreed-to installation location.
The client is not entitled to duplicate or modify the software or make it accessible to third parties or to use it for purposes other than those that have been expressly agreed to without the contractor’s prior written permission; otherwise all claims shall be excluded. This applies particularly to the source code.
Warranties with regard to software exist only to the extent that the software corresponds with the agreed specifications at the time the contract was concluded, insofar as the software is used in accordance with installation requirements and corresponds with the applicable use conditions. The contractor does not provide warranties that the software is in excellent condition or that it will function without interruptions or errors. The occurrence of errors cannot be excluded.
The selection and specification of software offered by the contractor is carried out by the client, who must ensure that it is compatible with the technical conditions on site. The client is responsible for the use of the software and thus obtained results.
With respect to individualised software, the features, special functions, hardware and software requirements, installation requirements, use conditions and operation only apply as set out in the technical specifications agreed to by the contract parties in writing. The client must provide the information that is required to produce individualised software prior to concluding the contract.
General
In the event a provision of these GTC is or will be found to be ineffective, this shall not otherwise affect the efficacy of the remaining provisions. The contract parties must replace the ineffective provisions with a provision that most closely corresponds with the ineffective provision and is customary in the industry.
The local court with jurisdiction over the registered offices of the contractor shall be the place of fulfilment for disputes between the contractor and client resulting from the contract or future contracts. The contractor is also entitled to file a suit at the natural forum of the client.
The contract parties hereby agree that Austrian law shall apply. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded by mutual agreement.
The client must immediately inform the contractor in writing of changes to his name, company, address, legal form or other relevant information.
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