1.) Scope of Application and Deviations
a) The following General Terms and Conditions apply to all present and future Contracts between the Principal and SYNCRAFT® Engineering GmbH (in the following the “Contractor“).
b) Deviations from these conditions and in particular the conditions of the Principal shall only apply if the Contractor acknowledges and confirms them expressly and in writing.
2.) Offers and Side Agreements
a) The offers of the Contractor are as regards all data indicated, including the price.
b) Should a confirmation of order of the Contractor contain any modifications compared with the order, these shall be deemed approved of by the Principal, should the latter not contradict immediately in writing.
c) Agreements generally require written form.
3.) Placing of Orders and Execution
a) The nature and the extent of the performance agreed can be deduced from the contract, the power of attorney and these General Terms and Conditions.
b) Modifications and additions of the order require written confirmation by the Contractor in order to become subject-matter of the contractual relationship.
c) The Contractor undertakes to properly execute the order placed with him in accordance with the generally recognized rules of technology and the principles of sound financial management.
d) The Contractor may use other duly authorized persons as sub-planners /sub-contractors in order to fulfil the contract.
4.) Price, Payment and Additional Expenses
a) All price indications are in EURO, unless otherwise indicated.
b) The respectively applicable statutory value added tax is added to the prices, should the value added tax not be indicated separately.
c) In absence of any special agreement, the payment has to be effected without any deduction to the account of the Contractor, namely as follows:
i. 50 % within 14 days after acceptance of the order by the Contractor.
ii. 40 % within 7 days before the first delivery, but within 30 days at the latest after notification of the readiness to dispatch.
iii. 10% within 14 days after handing over of the performance.
d) The Principal shall have the right to retain payments or to set such off against counter-claims only to the extent that his counter-claims are uncontested or have been established in a legally binding and final manner.
e) In case the Principal defaults with the fulfilment of a partial performance or in case he defaults with convened cooperation activities (e.g. performances of the Principal in the course of an establishment of a facility), which leads to a delay in the execution of the order or, respectively, to additional expenses / dwell times on the Contractor’s side, the Principal has to reimburse the Contractor for these additional expenses at the currently applicable cost rates /sales prices.
5.) Place of Performance
a) Place of performance for all performances is the seat of the Contractor, unless otherwise indicated.
b) Place of performance for the implementation of facilities is the site of installation pursuant to the respectively applicable offer.
6.) Conditions of Delivery
a) Free at site of installation, delivered and installed pursuant to Incoterms 2010 CPT, unless otherwise indicated.
b) The unloading of the goods or, respectively, of single components falls into the sphere of the Principal and is at his expenses.
c) Partial deliveries are permissible, to the extent that they are reasonable for the Principal.
d) The disposal of packaging material is at the expenses of the Principal.
e) The Principal is responsible to make operating materials and consumables required in the course of the installation and /or implementation available.
7.) Retention of Title
a) The Contractor reserves the right to property in the sold/delivered components/products/ plans and performances until full payment of the purchase price is effected vis-à-vis the Contractor.
b) Every treatment and processing of the purchase object subject to the retention title as well as any combination with third-party objects by the Principal or by third-parties shall be made on behalf of the Contractor. The Contractor shall have co-ownership in any newly produced objects in accordance with the value of the purchase object.
c) The Principal shall be entitled to process and to sell the purchase object in the course of his regular business operations; by way of security, he hereby assigns his claims arising out of the resale of the purchase object already then to the Contractor and the Contractor accepts this assignment already then.
d) The Principal is entitled to collect the claim. The Contractor reserves the right to notify of the assignment and to collect the claim. The Contractor undertakes to release the securities vested in him insofar as the invoice amount of the objects subject to retention title exceeds the claim to be secured by more than 20%, to the extent that same has not be settled yet.
e) The Contractor shall be entitled to withdraw from the contract in case the Principal has set a behaviour which is seriously infringing the contract despite a prior written warning and setting of a grace period of 14 days via registered mail, in particular in case of default in payment, and is entitled to demand surrender of the purchase object.
f) In case of any attachment by third-parties, especially in case of seizures of the purchase object, the Principal has to notify the Contractor thereof immediately in writing and to immediately inform the third-party on the retention title of the Contractor. The Purchaser bears all costs that are incurred due to the annulment of the attachment and due to the replacement of the purchase object to the extent that they cannot be collected from third-parties.
g) The Principal is obliged to maintain the purchase object in a proper condition for the duration of the retention title, to have all maintenance work provided for by the producer and repairs required by the producer – except from emergency cases – executed by the supplier or by a workshop recognized for the servicing of the purchase object by the supplier.
h) Should the law of a country not allow a retention title, should the country however allow to reserve comparable rights, then the Contractor may exercise the comparable rights of this kind. The Principal is obliged to undertake all measures at his expenses that are necessary to ensure that these rights in the purchase object become effective and remain effective.
8.) Approval Requirement
a) In the course of the licensing of installations and the detailed planning of the installations linked therewith, the authority might change the framework conditions and/or statutory conditions compared with the initial facility offer or, respectively, service offer. The compliance with these statutory conditions or, respectively, the adjustment to changed framework conditions are excluded from the offer, unless otherwise agreed upon, and are incumbent on the Principal. Should the Contractor execute these activities, these have to be ordered separately.
b) The Contractor will however do the best possible to support the Principal when fulfilling / adjusting.
a) Contractor and Principal undertake to mutually keep secret the information provided.
b) The Contractor is also subject to a secrecy obligation in the course of his planning activities if and as long as the Principal has a justified interest in this confidentiality. After execution of the order, the Contractor shall be entitled to publish the contractual work in whole or partially for commercial purposes, unless otherwise contractually agreed.
10.) Protection of Property Rights
a) The Contractor reserves all rights and use of the documents established by him (in particular plans, prospectuses, technical documents).
b) Every user (in particular the processing, construction, reproduction, distribution, public presentation, provision) of documents or of parts thereof shall only be allowed with express consent of the Contractor. All documents may therefore only be used for purposes expressly determined when placing the order or expressly specified by a subsequent agreement.
c) The Contractor shall be entitled, the Principal is obliged to indicate the name (company name, trade name) of the Contractor when issuing publications and announcements.
d) In case of violation of these provisions on the protection of documents, the Contractor shall be entitled to claim a penalty amounting to the double appropriate remuneration of the non-authorized use; the assertion of any damage claims going beyond is reserved. This penalty which is due independent of fault is not subject to the right of mitigation by the courts. The burden of proof that the Principal has not used the documents of the Contractor is incumbent on the Principal.
11.) Warranty and Damage Claims
a) Warranty claims are subject to the following prerequisites - the compliance with all prerequisites having to be fully documented by the Principal and the documentation being precondition to assert all claims:
i. Facility has to be operated in accordance with the operating and maintenance instructions
ii. Facility has to be operated in the range of the nominal capacity
iii. The combustible material used has to comply with the specifications set forth
iv. The facility has to be operated by specialised personnel trained by the Contractor
b) The warranty period starts with the presentation of the proof of performance or, respectively, with the hand-over of the performance for a duration of 12 months, wear parts being generally excluded from this warranty.
c) In case that the implementation / hand-over is delayed for reasons that do not fall within the sphere of the Contractor, the deadline for the warranty starts in any case 3 months after effected delivery or, respectively, notification of readiness to dispatch.
d) Notifications concerning possible cases of warranty have to be received by the Contractor within 8 days after discovery and sent in writing, otherwise they shall not be allowed. The notification has to contain the defective good, what type of defect it is and the circumstances under which the defect occurred.
e) The Contractor has to be reimbursed the expenses that are caused by complaints or contestations that are not justified or that infringe the contractual provisions.
f) Representatives of the Contractor have the right to access the facility at any time during the warranty period and after that period at any time for controls or inspections.
g) The Principal has to be informed in advance thereof or, respectively, be notified thereof. In the course of warranty the Contractor is obliged at his own discretion to replace defective components by not defective parts of the same quality or to credit an amount to the Principal that corresponds the price reduction.
h) The parts replaced become property of the Contractor.
i) Should a repair be necessary in the course of warranty, the Principal first has to invite the Contractor to remedy the defects setting an adequate period for this. Should the Principal remedy the defect himself or, respectively, have it remedied by a third-party without prior invitation or, respectively, refusal by the Contractor, the Principal shall not be entitled to reimbursement of costs for remedying the defects.
j) Claims of the Principal or of third-parties going beyond this, in particular damage claims for indirect or subsequent damages of any kind whatsoever are excluded, unless the damage was caused by the Contractor intentionally.
k) All costs and services resulting from any maintenance and repair activities for wear as well as force majeure or from damages caused by third-parties (vandalism, measures of authorities etc.) are excluded from warranty.
l) The wear parts are indicated in the documentation (operating instructions) that is handed over upon acceptance. Excluded from warranty are also all damages that result from any usage that does not correspond the indications of the maintenance books of the single devices, from the use of other parts than the original parts as well as from the intervention of unauthorized personnel.
m) The Contractor has to perform his services with due diligence that can be expected from a specialist.
12.) Risks during Performance of Service
a) Generally, all risks that are linked with the ground on which the facility is installed (geology, stability, existence of toxic material, remainders of wars, domestic waste, etc.) are borne by the Principal and are at the expenses of the Principal.
b) The Principal has to ensure furthermore that the machines and the personnel necessary for the installation of the facility is available, that the access is free, that the construction site is secured and that the facility is protected against theft, that the companies present on the construction site are coordinated, that the facility is monitored at day and at night and that the signage is fixed in accordance with the respective competence pursuant to the law.
c) At the moment when the facility or the components thereof are brought to the construction site, the Principal bears the risk of the entire or partial destruction of the facility or the components thereof; independent of an agreed retention title.
d) The Principal has to protect or (if any) insure the goods supplied / components supplied against theft, vandalism and damaging through external influences (e.g. weather), in case that such an insurance cover does not yet exist. The Principal shall be liable for damages provoked thereby.
e) Should dispatch be delayed on request of the Contractor or should the goods not be accepted for reasons that do not fall in the sphere of the Contractor, the risk is transferred to the Principal upon notification of readiness to dispatch. The costs caused by storage, at least 1 % of the value of the goods per month, have to be borne by the Principal.
13.) Liability and Exclusion of Liability
a) The Contractor shall be liable for the correctness of his calculations/interpretations as well as for the functionality of his facilities.
b) The total liability of the Contractor – for whatever legal ground - resulting from or in connection with the respective contract to be concluded shall be limited to 10% of the offer price.
c) The Contractor shall in no case be liable - for whatever legal grounds – for the reimbursement of property damages, indirect damages or consequential damages, in particular not for any downtime, loss of production, plant downtime, capital costs and input costs, loss of profit etc..
d) This shall only not apply in case that it can be demonstrated that the Contractor acted intentionally.
e) The afore-mentioned limitation of liability shall only be applicable to the legal relationship between the Contractor and the Principal. Provisions under insurance law are not affected thereof.
14.) Withdrawal from the Contract
a) Withdrawal from the contract is generally not permissible.
b) In case of default of the Contractor concerning a service, the Principal shall only be entitled to withdraw from the contract after having set an adequate grace period; the grace period has to be set via registered mail.
c) In case of default of the Principal concerning a partial service or a convened cooperation activity, which makes it impossible for the Contractor to execute the order or which considerably hinders the execution of the order by the Contractor, the Contractor shall be entitled to withdraw from the contract after having issued a written warning and after having set a grace period of 14 days via registered mail.
d) The Contractor shall be entitled to withdraw from the Contract in case that the Principal or a third-party has filed an application to open the insolvency proceedings.
e) In case that the Contractor is entitled to withdraw from the contract, he shall reserve the right to claim the entire agreed fees/ the entire agreed price, same shall apply in case of unjustified withdrawal by the Principal. Furthermore, sec. 1168 of the Austrian Civil Code (ABGB) shall apply; in case of justified withdrawal of the Principal, the services / deliveries performed by the Contractor shall also be remunerated by him.
15.) Choice of Law, Place of Jurisdiction
a) Austrian law shall exclusively be applicable on contracts between Principal and Contractor..
b) For all disputes, the jurisdiction of the court at the seat of the Contractor having subject-matter jurisdiction shall be convened.