General Terms and Conditions for Entrepreneurial Business
These General Terms and Conditions (hereinafter referred to as GTC) are generally designed for legal transactions between companies.
The client is an entrepreneur within the meaning of § 1 para. 1 no. 1 KSchG (Consumer Protection Act). The Contractor shall also address its offer exclusively to entrepreneurs. If the Client is a consumer (within the meaning of Section 1 (1) (2) of the Austrian Consumer Protection Act), the Client shall inform the Contractor thereof prior to the conclusion of the contract.
These GTC shall apply to all legal transactions and legal relationships between the Client and the Contractor, for example not only to the first legal transaction, but the application of the GTC shall also be expressly agreed for all additional and follow-up orders as well as further transactions.
Purchasing or other terms and conditions of the Client shall not be valid and are hereby expressly rejected. The contractor expressly declares that he only wishes to contract on the basis of his GTC.
Contractual performance on our part shall in this respect not be deemed to be consent to contractual terms and conditions deviating from our terms and conditions.
The client declares that he had the opportunity to take note of the contents of the GTC before conclusion of the contract and that he agrees with their contents.
Amendments and supplements to these GTC must be made in writing to be legally effective. This written form requirement may also only be waived in writing. It is noted that ancillary clauses do not exist.
For the purpose of better readability, no gender-specific differentiation is made. This is done without any intention of discrimination.
The contractual, ordering and business language is German or English.
2. Offer and conclusion of contract
Offers of the contractor are subject to change and non-binding. The contractor accepts offers or orders from the client by confirming the order or by delivering the object of purchase or by providing the service.
The information on the services and products of the contractor 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.
The contractor’s cost estimates are always prepared without any guarantee for completeness and correctness. 3.
3. Delivery and service deadlines
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.
If the order is amended or supplemented after it has been placed, the delivery and performance period shall be extended by a reasonable period of time.
If the contractor is prevented from fulfilling his obligation by the occurrence of unforeseeable circumstances or circumstances for which the contractor is not responsible, such as operational disruptions, sovereign 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 and performance period shall be extended to a reasonable extent. It is irrelevant whether these circumstances occur at the principal itself or at one of its suppliers or subcontractors.
If the fulfilment of the contract becomes impossible for reasons for which the contractor is not responsible, the contractor shall be released from his contractual obligations.
The contractor shall be entitled to make and invoice partial or advance deliveries. If delivery on call has been agreed, the service/purchase item shall be deemed to have been called off no later than six months after the order. 4.
4. Remuneration and prices
If an order is placed without a prior offer or if services are performed which were not expressly included in the order, the contractor shall be entitled to claim the remuneration which corresponds to his price list or his usual remuneration.
The contractor is entitled to demand a higher fee than the agreed fee or purchase price if the calculation bases existing at the time the order was placed, e.g. raw material prices, the exchange rate or personnel costs, change after the conclusion of the contract.
All prices and charges are subject to the statutory value added tax applicable at the time and are ex warehouse. Packaging, transport, loading and shipping costs as well as customs duties and insurance shall be borne by the customer. Packaging will only be taken back if expressly agreed.
For the shipment of merchandise, 2% discount deduction for payment within 14 days or 30 days net shall be deemed agreed.
For custom-made products, unless otherwise agreed, half of the payment or purchase price shall be due upon receipt of the order confirmation and the remaining amount shall be due prior to dispatch or readiness for collection, upon receipt of the invoice, free of charges and deductions.
For services, payment shall be made immediately upon receipt of the invoice without deduction of discount.
A payment shall be deemed to be on time if it has been received in due time on the Contractor’s account.
In the event of late payment, the contractor shall be entitled to charge interest on arrears at the statutory rate. Expedient expenses for reminders, collection attempts, storage costs and any judicial or extrajudicial lawyer’s fees incurred as a result of the delay in payment shall be reimbursed to the contractor.
The benefits agreed upon conclusion of the contract, such as discounts and rebates, are granted on condition of timely and complete payment. In the event of default in payment, any cash discount agreements shall also cease to apply and the contractor shall be entitled to charge these subsequently.
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 is not disputed by the contractor.
If the Client is in default with a payment obligation to the Contractor arising from the contractual relationship or any other payment obligation, the Contractor shall be entitled, without prejudice to any other rights, to suspend its performance obligation until payment by the Client and/or to claim a reasonable extension of the delivery period, to declare due all outstanding claims arising from this or other legal transactions and to recover any items delivered, without this releasing the Client from its performance obligation. Withdrawal from the contract by the contractor as a result of these actions shall only apply if this has been expressly declared.
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.
Costs for travel, daily and overnight allowances shall be invoiced separately. Travel times shall be considered working time.
5. Transfer of risk and shipment
The risk shall pass to the customer as soon as the contractor holds the object of purchase ready for collection in the 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. The client shall approve any appropriate mode of dispatch. Transport insurance shall only be taken out upon written order of the client.
Packaging and shipping costs shall be charged to the client.
The place of performance is the contractor’s warehouse.
6. Retention of title and right of retention
All goods and products 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 or processed.
7. Obligations of the client
In the case of assembly by the contractor, the client is obliged to ensure that work can begin immediately after the arrival of the contractor’s assembly specialist. The client shall be liable for ensuring that the necessary technical prerequisites for the installation are in place. Waiting times caused by the client shall be charged to the client in accordance with the valid hourly rate.
The order is placed irrespective of any official permits that may be required and which the client must obtain.
The warranty obligation is limited to one year and begins with the delivery of the item (§ 933 para. 1 ABGB) as defined in these GTC. This also applies to delivery and service items that are firmly connected to a building or land. If the Client makes changes to the object of purchase, the Contractor’s warranty obligation shall expire.
If regular, annual maintenance is carried out by the contractor, the warranty obligation shall be extended to a further year in each case. In the case of custom-made products, the warranty obligation due to the annual maintenance shall end after 15 years, as the product life is a maximum of 15 years.
No warranty claims shall exist in the event of defects caused by improper handling or if operating or installation instructions issued by the contractor are not followed, defects caused by incorrect specifications by the client or commissioning by the client or third parties, in the event of natural wear and tear, transport damage, improper storage, failure to carry out necessary maintenance or poor maintenance.
Complaints must be made immediately in writing at the Contractor’s registered office with a precise description of the defect within the meaning of the provisions of §§ 377 ff of the Austrian Commercial Code (UGB).
Complaints made verbally, by telephone or not immediately shall not be considered.
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 conditions.
All costs incurred in connection with the rectification of defects, such as transport, import, export and travel costs, shall be borne by the Principal. If a necessary examination of the defect does not reveal any fault on the part of the contractor, the client shall bear the costs of the examination.
The contractor shall only be liable for damage caused intentionally or by gross negligence. Liability for slight negligence is excluded. The fault of the contractor must be proven by the client.
Liability for indirect damage and loss of profit due to claims of third parties against the principal is excluded.
Any liability of the contractor is in any case limited to the amount of the agreed remuneration or the purchase price for the respective order. Contracts taken over by the contractor are only taken over with the reservation of this limitation of liability. Any further liability of the contractor is expressly excluded.
Claims for damages shall in any case be asserted in court within twelve months, otherwise they shall be forfeited.
Liability is generally excluded in the event of non-compliance with any conditions for assembly, commissioning and use or the official approval conditions.
The limitations of liability made here also apply to any vicarious agents.
Software, execution documents, plans, sketches and other technical documents as well as samples, catalogues, brochures, illustrations and the like shall remain the intellectual property of the contractor under copyright law. The client shall not be granted any exploitation rights whatsoever. Any reproduction, processing, imitation, editing and exploitation not expressly granted is not permitted.
11. Data protection
The disclosure of data and information to the respective required business partners is permitted to the extent necessary for the fulfilment of the contractual relationship (Art 6 para 1 lit b DSGVO). Otherwise, the contracting parties shall be obliged to maintain secrecy with regard to the circumstances and data relating to the other party of which they become aware as a result of the present business relationship and, in particular, to observe data secrecy. These obligations to maintain data and business secrecy shall also apply beyond the contractual relationship.
The Contractor draws attention to the fact that the Client’s data may be processed for advertising purposes on the basis of legitimate interests (Art. 6 para. 1 lit f DSGVO). The Client may object to this form of data processing at any time (Art 21 (2) DSGVO).
Should any provision of these GTC be invalid, this shall not affect the validity of the remaining provisions. The place of jurisdiction for all disputes arising from the contractual relationship or future contracts between the contractor and the client is the court with local jurisdiction for the contractor’s registered office. The contractor shall also be entitled to take legal action at the general place of jurisdiction of the client. The contracting parties agree on the application of Austrian law. The application of the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Convention) as well as of reference standards is excluded.
The client shall notify the Contractor immediately in writing of any changes to its name, company, address, legal form or other relevant information.
Status: February 2021