General Terms and Conditions
(GTS) of mechatronics engineers for commercial purposes
2016 version
1. Scope of application
1.1.
These terms of business apply between us (
1.2. The
version of our GTS that is valid at the time the contract is concluded is to be
applied; these terms can be downloaded from our homepage
1.3. We
conclude contracts exclusively on the basis of our GTS.
1.4. Terms
of business of the customer or amendments or supplements to our GTS require
our express written consent in order to be valid.
1.5. The customer's terms of business are not accepted even if we do not
expressly reject them after having received them.
2. Offers, conclusion of contracts
2.1. Our
offers are not binding.
2.2. Promises,
assurances and guarantees on our part, or agreements diverging from these GTS
in connection with the conclusion of the contract become binding only on our
written confirmation.
2.3. The
customer must notify us of any information about our products and
services that is provided in catalogues, price lists, brochures, advertisements
on trade fair stands, circulars, advertising mailings or other media
(information material) which is not attributable to us, insofar as the customer
takes this as the basis for his decision to place an order. In such a case, we
can comment on its accuracy. If the customer does not meet this obligation,
such information is not binding, unless it is expressly declared to form part
of the contract.
2.4. Estimates of costs are provided without warranty and are free
of charge.
3. Prices
3.1.
Prices stated are fundamentally not to be understood as lump sum
prices.
3.2. For
services that are ordered by the customer and which are not covered in the
original order, in the absence of a fee agreement there is a claim to
appropriate remuneration.
3.3.
Prices stated are to be understood as plus the statutory value added tax that
is applicable in each case, and ex works. Costs of packaging, transport,
loading and despatch, as well as customs duty and insurance, are to be borne by
the customer. We are obliged to take back packaging only if this is explicitly
agreed.
3.4. The
customer is responsible for arranging the proper and environmentally
appropriate disposal of scrap material. If we are separately entrusted
with this, in the absence of a remuneration agreement this must be additionally
compensated appropriately to the extent agreed for this.
3.5. We
are entitled, and also obliged at the customer's request, to adapt the
contractually agreed remuneration if changes have occurred to the extent of at
least
3.6. The
remuneration in the case of continuing obligations is agreed to be index-adjusted
according to the 2010 consumer price index and remuneration is thereby
adjusted accordingly. The month in which the contract was concluded is taken as
the starting basis.
3.7. Costs for travel expenses, daily allowances and overnight allowances
are charged separately. Travel time is deemed to be work time.
4. Goods provided
4.1. If
equipment or other materials are provided by the customer, we are entitled to
charge the customer
4.2. Such equipment and other materials provided by the customer are not
covered by the warranty. The quality and serviceability of goods
provided are the customer's responsibility.
5. Payment
5.1. One third of the
remuneration shall be due on conclusion of the contract, one third at
the start of performance, and the rest following completion of performance.
5.2. Entitlement to deduct
a discount requires express written agreement.
5.3. Payment
references stated by the customer on the bank transfer documentation are
not binding for us.
5.4. If, in the
context of other existing contractual relationships with us, the customer is in
default of payment, we are entitled to suspend fulfilment of our obligations
from this contract until the customer has met his obligations.
5.5. We are then also
entitled to make payable all claims for services from the ongoing
business relationship with the customer that have already been provided.
5.6. Where a payment
deadline is exceeded, even if this is only in respect of an individual part
of the performance, any price reductions granted (discounts, allowances etc.)
are forfeited and shall be added to the invoice.
5.7. In the event of
a delay in payment, the customer undertakes to reimburse us for the necessary
and appropriate costs of collecting payment (reminder costs, collection
charges, lawyers fees etc.).
5.8. In accordance
with section 456 of the Austrian Commercial Code (UGB), in the case of culpable
delay in payment, we are entitled to charge 9.2 % points above
the base interest rate.
5.9. We reserve the
right to claim further damages for delay.
5.10. The customer is
entitled to offset only insofar as counter-claims have been established
by the courts or acknowledged by us.
5.11. For the appropriate reminders that are necessary for payment
collection, the customer undertakes, in the event of culpable delay in payment,
to pay reminder fees of €
6. Credit rating check
6.1. The customer declares his express agreement that his data may be
communicated exclusively for the purpose of protection of creditors to the
officially privileged creditor protection associations Alpenländischer
Kreditorenverband (AKV), Österreichischer Verband Creditreform (ÖVC),
Insolvenzschutzverband für Arbeitnehmer oder Arbeitnehmerinnen (ISA) and
Kreditschutzverband von 1870 (KSV).
7. Customer's duty of cooperation
7.1. Our
duty to render performance begins, at the earliest, as soon as all
technical details have been clarified, the customer has created the technical
and legal prerequisites (which we shall be pleased to communicate on request),
we have received the agreed down-payments or securities, and the customer has
fulfilled his contractual obligations of preliminary work and cooperation, in
particular also those specified in the points below.
7.2. In
the case of assembly work to be carried out by us, the customer is obliged to
ensure that work can be begun immediately after the arrival of our assembly
team.
7.3. The
customer must secure the required permits from third parties as well as
the notifications and approvals by authorities at his expense. Details of these
can be requested from us.
7.4. The
quantities of energy and water required for the rendering of performance
including trial operation are to be provided by the customer at his expense.
7.5. For
the time of rendering the performance, the customer must make available to us,
free of charge, lockable rooms, which are not accessible to third
parties, for use by the workers as well as for storing tools and materials.
7.6. The
customer is liable for ensuring that the necessary constructional, technical
and legal preconditions for the work to be completed or the object of
purchase are in place which were described in the contract or in information
provided to the customer before the contract was concluded or which the
customer must have known on the basis of relevant specialist knowledge or
experience.
7.7. The
customer is also liable for ensuring that the technical installations, such as
supply lines, cabling, networks and the like are in a technically perfect and
operational condition and are compatible with the objects of purchase or work
to be effected by us.
7.8. We
are entitled but not obliged to check these installations in
return for separate remuneration.
7.9. In
particular, before the start of assembly work, the customer must provide the
necessary information on the location of concealed supply lines for
electricity, gas and water or similar installations, escape routes, other
obstructions of a structural nature, possible sources of danger, as well as the
necessary statics-related information, without being asked to do so.
7.10.
Details of the necessary information relating to the order can be obtained from
us.
7.11. The
customer bears sole responsibility for the design and functionality of parts
that have been
provided. There
is no duty to examine any documents provided by the customer, details or
instructions provided – beyond setting up a technical construction dossier and
certifying observance of the Machines directive as well as any other applicable
guidelines – with regard to the item to be supplied, and liability in relation
to this is excluded. The duty to issue the certification can be contractually
transferred to the customer marketing the deliverable item.
7.12. The customer is not entitled to assign claims and rights
from the contractual relationship without our written consent.
8. Execution of work
8.1. We
are obliged to take account of subsequent modification and extension wishes of
the customer only if they are necessary for technical reasons in order to
achieve the purpose of the contract.
8.2. Minor
amendments to our performance that are objectively justified and are
reasonable for the customer are deemed to be approved in advance.
8.3. If,
after the contract has been awarded, there is an amendment of or
supplement to the order for whatever reason, then the delivery / performance
deadline is extended by an appropriate period of time.
8.4. If, after the contract has been concluded, the customer desires
performance within a shorter period of time, this represents a change to
the contract. This may necessitate overtime and/or extra costs may arise due to
acceleration of material procurement, and the remuneration is increased
accordingly in proportion to the necessary expenditure.
8.5. OBJECTIVELY JUSTIFIED (E.G. SIZE OF
INSTALLATION, CONSTRUCTION PROGRESS ETC.) PART-DELIVERIES AND PART-PERFORMANCE
ARE PERMITTED AND CAN BE INVOICED SEPARATELY.
8.6. If delivery on call is agreed, the
object of performance / object of purchase is deemed to have been called six
months after ordering at the latest.
9. Deadlines for supply and performance
9.1.
Deadlines and dates for supply / performance are binding for us only if
they have been established in writing. Any divergence from this requirement of
the written form must likewise be in writing.
9.2.
Deadlines and dates are postponed in the event of force majeure, strike,
unforeseeable delay by our ancillary suppliers that is not caused by us, or
other comparable occurrences that lie beyond our sphere of influence, in that
period of time during which the corresponding occurrence lasts. The customer's
right to withdraw from the contract in the event of delays that render a
commitment to the contract unreasonable remains unaffected by this.
9.3. If
the start of performance or the performance are delayed or interrupted
by circumstances that are
attributable
to the customer, in particular on account of infringement of the duty of
cooperation pursuant to point 7, performance deadlines are extended accordingly
and completion dates are postponed accordingly.
9.4. For
the storage of materials and equipment and the like in our company that
is necessitated by this, we are entitled to charge
9.5. In the event of a withdrawal from the contract on account of delay,
the customer must grant a grace period by means of registered letter
whilst simultaneously threatening withdrawal.
10. Risk assumption
10.1. THE RISK PASSES TO THE BUSINESS
CUSTOMER AS SOON AS WE HOLD THE OBJECT OF PURCHASE, THE MATERIAL OR THE WORK
READY FOR COLLECTION IN OUR WORKS OR WAREHOUSE, DELIVER IT OURSELVES, OR HAND
IT OVER TO A CARRIER.
10.2. THE BUSINESS CUSTOMER SHALL TAKE OUT
APPROPRIATE INSURANCE AGAINST THIS RISK. WE UNDERTAKE TO TAKE OUT
TRANSPORTATION INSURANCE AT THE WRITTEN REQUEST OF THE CUSTOMER AND AT HIS
EXPENSE. THE CUSTOMER APPROVES ANY CUSTOMARY METHOD OF DESPATCH.
11. Delay in acceptance
11.1. If
the customer delays acceptance for longer than
11.2. In
the case of delay in acceptance on the part of the customer, we are likewise
entitled, in the case of insistence on fulfilment of the contract, to store the
goods at our premises, for which we are due a storage fee pursuant to
point 9.4.
11.3. In
the case of a justified withdrawal from the contract, we are permitted to
demand from the customer flat-rate damages of the level of
11.4. Claiming higher damages is permitted.
12. Reservation of title
12.1. The
goods that we supply, assemble or otherwise hand over remain our property until
payment has been made in full.
12.2. Reselling
is permitted only if that has been notified to us in good time beforehand,
stating the name and exact address of the buyer and we agree to the reselling.
In the event that we agree, the claim for the purchase price is deemed to be
assigned to us here and now.
12.3.
Until full payment of the remuneration or purchase price has been made, the
customer must indicate this assignment in his books and on his invoices,
and must inform his debtors accordingly. On request, he must make
available to us all documents and information such as are necessary to assert
the assigned receivables and claims.
12.4. If
the customer falls into arrears in payment, we are entitled, whilst setting an
appropriate grace period, to demand surrender of the goods that are subject to
retention of title.
12.5. The
customer must notify us immediately before the opening of bankruptcy
proceedings in relation to his assets or the attachment of our goods that are
subject to retention of title.
12.6. The
customer declares his explicit understanding that in order to assert our claim
to reservation of ownership, we are permitted to enter the location of
the goods that are subject to retention of title.
12.7. The
customer shall bear any costs that are necessary and appropriate for
pursuing expedient legal remedies.
12.8. In
the assertion of reservation of ownership, a withdrawal from the contract exists
only if this is explicitly declared.
12.9. We
are permitted to dispose of the goods subject to retention of title that
have been reclaimed as we see fit and to our best advantage.
12.10. Until all our claims have been paid in full, the object of
performance / object of purchase must not be pledged, assigned or otherwise
burdened with the rights of third parties. In the case of seizure or
other availment, the customer is obliged to point out our right of ownership
and to notify us immediately.
13. Industrial property rights of third parties
13.1. For
deliverables that we produce according to customer documentation (design
specifications, drawings, models or other specifications etc.), warranty that
the production of these deliverables does not infringe the industrial property
rights of third parties is assumed exclusively by the customer.
13.2. If
the industrial property rights of third parties are nonetheless claimed, we are
entitled to suspend production of the deliverables at the customer's
risk
until the
rights of third parties have been clarified, unless it is obvious that the
claims are unjustified.
13.3. The
customer shall indemnify us for any loss or damage in this regard.
13.4. We
are entitled to demand from business customers appropriate advances on costs
for any legal costs.
13.5.
Likewise we can claim from the customer the refunding of necessary and expedient
costs that we have incurred.
13.6. We are entitled to demand appropriate advances on costs for
any legal costs.
14. Our intellectual property
14.1.
Deliverables and related production specifications, plans, sketches,
estimates of costs and other documents as well as software that have been
provided by us or which have arisen through our contribution shall remain our
intellectual property.
14.2. Use
thereof, in particular distributing, copying, publishing and making them
available, even including the copying only of extracts, as well as imitation,
processing or exploitation, requires our explicit consent.
14.3. The customer furthermore undertakes to maintain confidentiality
in relation to third parties of the knowledge he has acquired from the business
relationship.
15. Warranty
15.1. The
warranty period for our services is one year from handover.
15.2. In
the absence of any agreement to the contrary (e.g. formal acceptance), the time
of handover is the time of completion, at the latest when the customer
has taken over the work into his control or has refused to take it over without
giving reasons. With the date on which the customer is notified of completion,
in the absence of justified refusal of acceptance the work is deemed to be
taken into his control.
15.3. If
a joint handover is envisaged, and if the customer does not attend the handover
appointment that has been notified to him, the handover is deemed to have taken
place on that day.
15.4. The
remedying of a defect that has been claimed by the customer does not
represent acknowledgement of a defect.
15.5. The
customer must always prove that the defect existed at the time of
handover.
15.6. For
the remedying of defects, the customer must make the plant or equipment available
to us without culpable delay, and must grant us the opportunity for
assessment by us or by an expert appointed by us.
15.7. Notices
of defects and complaints of all kinds must be notified immediately (at the
latest after
15.8. If
the defects alleged by the customer are unjustified, he is
obliged to compensate us for expenses incurred for establishing freedom from
defects or remedying defects.
15.9. Any
utilisation or processing of the defective deliverable that carries the
risk of further damage, or makes elimination of the cause more difficult or
prevents it, must be stopped by the customer without delay, unless this is
unreasonable.
15.10. We
are entitled to carry out or have carried out any examination that we
regard as necessary, even if this renders the goods or work pieces unusable. If
this examination shows that we are not responsible for any defect, the customer
must bear the costs for this examination against appropriate remuneration.
15.11.
Transportation and travel costs arising in connection with the rectification of
defects are to be borne by the customer. On request by us, the customer must
provide, free of charge, the necessary workers, energy and premises, and must
cooperate in accordance with point 7.
15.12.
The customer must grant us at least two attempts to rectify the defect.
15.13. We
can avert a request for rescission through improvement or an appropriate
price reduction, insofar as this does not relate to a significant and
unrectifiable defect.
15.14. If
the deliverables are produced on the basis of details, drawings, plans,
models or other specifications of the customer, we provide warranty only
for the execution according to specifications.
15.15.
The fact that the work is not fully suitable for the agreed use does not
constitute a defect if this is based exclusively on actual circumstances that differ
from the information that was available at the time of performance
because the customer does not fulfil his obligations to cooperate in accordance
with point 7.
15.16. Likewise it is not a defect if the customer's technical
installations, such as supply lines, cabling, networks etc. are not in a
technically perfect and operational condition, or are not compatible with the
items supplied.
16. Liability
16.1. In the case of pecuniary loss as a result of the
infringement of contractual or pre-contractual obligations, in particular
because of impossibility of performance, delay etc., we shall be liable only in
cases of premeditation or gross negligence on account of technical
circumstances.
16.2. If any
liability insurance has been taken out by us, liability is limited to
the maximum liability amount thereof.
16.3. This limitation
also applies in respect of damage to items that we have accepted for
processing.
16.4. Claims for
damages must be filed before the courts within two years or are otherwise
forfeited.
16.5. The
restrictions or exclusions of liability also include claims against our employees,
representatives and contractors for damage which they cause to customers
without reference to a contract on their part with the customer.
16.6. Our liability
is excluded for damage due to improper handling or storage, overuse,
failure to follow operating instructions and installation instructions,
defective assembly, commissioning, servicing, maintenance by the customer or
third parties not authorised by us, or natural wear and tear, insofar as this
caused the damage. Liability is also excluded for failure to carry out
necessary servicing.
16.7. If and insofar
as the customer can claim insurance payments for damage for which we are
liable, through an indemnity insurance that he has taken out himself or that
has been taken out for his benefit (e.g. liability insurance, fully
comprehensive cover, transport, fire, interruption of operation and others),
the customer undertakes to claim the insurance payment and our liability to the
customer is limited to this extent to the disadvantages that the customer
suffers by claiming on this insurance (e.g. through higher insurance premiums).
16.8. Those product characteristics are owed which, in respect of the
licensing regulations, operating instructions and other product-related
guidelines and information (in particular also monitoring and servicing), can
be expected of us, third-party manufacturers or importers by the customer,
taking into account his knowledge and experience. The customer as reseller must
take out adequate insurance for product liability claims and must
indemnify us for any loss or damage with regard to claims for recourse.
17. Severability clause
17.1. In the event that individual parts of these GTS are invalid, the
validity of the other parts shall not be affected by this.
17.2. The parties here and now undertake to agree a substitute
provision – from the perspective of responsible contracting parties – which
comes as close as possible to the invalid provision in terms of the
economic end, taking into account what is usual
in the industry.
18. GENERAL
18.1. AUSTRIAN LAW APPLIES.
18.2. THE UN CONVENTION ON CONTRACTS FOR THE
INTERNATIONAL SALE OF GOODS IS EXCLUDED.
18.3. THE PLACE OF PERFORMANCE IS THE
DOMICILE OF THE COMPANY (
18.4. The place of jurisdiction for all
disputes arising from the contractual relationship or future contracts between
us and the customer is the court having jurisdiction for our domicile.
18.5. The customer must inform us immediately in
writing of any changes to his name, company name, address, legal form or
other relevant information.