1. SCOPE OF APPLICATION / AMENDMENT GTC
1.1. These General Terms and Conditions (GTC) shall be deemed agreed between SynCraft Engineering GmbH (Syn-Craft or Contractor) and the Client (Client).
1.2. The GTC shall form the basis of all legal transactions, offers, deliveries, services or other ancillary services.
1.3. These current GTC in force at the date of the conclusion of the contract, which can be downloaded from the Contractor's website (www.syncraft.at), shall apply at the time of conclusion of the contract.
2. TERMS AND CONDITIONS OF THE CLIENT
2.1. General Terms and Conditions, contract forms or other conditions of the Client are not accepted and are ex-plicitly objected to. They shall be ineffective in their entirety, even without a new objection by the Contractor. Any deviation from this general objection shall require an express written confirmation by the Contractor that the Contractor wishes to contract only on the basis of its GTC.
2.2. The confirmation of a deviating provision shall only apply to the relevant contractual point and not to the other provisions of these GTC. If the application of all provisions of the Client's GTC is agreed, the provisions of these GTC shall continue to apply unless they conflict with the provisions of the Client's GTC.
2.3. An act of contractual performance by the Contractor or silence with regard to the Client's provisions deviating from these GTC shall not constitute consent by the Contractor.
3. COST ESTIMATE / OFFER / CONCLUSION OF CONTRACT
3.1. The Contractor's cost estimates and offers are always subject to change and non-binding, unless they have been expressly designated as binding in writing.
3.2. Cost estimates shall only be provided by the Contractor in writing and without any guarantee for their correct-ness and completeness.
3.3. The Contractor shall be entitled to charge a fee for cost estimates. The Contractor shall inform the consumer of a possible fee before preparing a cost estimate.
3.4. The preparation of a cost estimate does not oblige the Contractor to accept an order or, respectively, to con-clude a contract.
3.5. Offers shall only be issued by the Contractor in writing. Otherwise, they shall be considered non-binding con-tractual negotiations.
3.6. Acceptance of an offer made by the Contractor shall only be possible in its entirety unless the contracting parties have reached a written agreement to the contrary.
3.7. A contract shall be validly concluded if
the Client accepts an offer made by the Contractor in writing within 14 days of its submission, or
a deed concerning the subject matter of the contract is drawn up and signed by all parties to the contract, or
the Client makes an offer to the Contractor and the Contractor accepts it by means of a written order con-firmation, by rendering the service or by delivering the object of the service.
3.8. If the written order confirmation contains changes to the order (offer), these shall be deemed to have been approved by the entrepreneurial Client, unless it immediately objects to them in writing.
3.9. As long as the Client has not submitted a written contractual declaration, the Contractor shall be entitled, but not obliged, to commence with the performance of the contract.
4. OBJECT OF DELIVERY / SERVICE, EXECUTION
4.1. The type and scope of the object of delivery /service shall be determined by the offer, order or contract ac-cepted by the Contractor or the Client as well as these GTC.
4.2. The object of delivery/service shall be provided in accordance with the general state of the art and the relevant Austrian legal provisions.
4.3. In the course of a plant licence proceedings and the associated detailed plant planning, the framework condi-tions and/or official requirements imposed may be changed by the authorities/third parties compared to the original plant offered or, respectively, the original service offered. Unless otherwise agreed, the fulfilment of these official requirements or, respectively, adaptation to changed framework conditions shall not be included in the offer, order or contract and shall be incumbent upon the Client. If the Contractor is to work for the Client in this respect, either a separate order shall be placed or the existing order shall be amended or supplement-ed.
4.4. Amendments of or supplements to the order shall only be taken into account if they are brought to the Con-tractor's attention in good time before the commencement of the performance of the services and if the Con-tractor agrees to them in writing. In the event of later notification or rejection by the Contractor, the Contractor shall be entitled to an appropriate fee for the (frustrated) services provided up to that point, e.g. planning work, production work started, etc., or for changes or other additional services resulting therefrom. This shall apply irrespective of whether a lump-sum fee has been agreed between the contracting parties.
4.5. Minor changes to the object of delivery /service or, respectively, to the execution by the Contractor that are objectively justified and reasonable for the entrepreneurial Client shall be deemed to have been approved in advance.
4.6. If, after the conclusion of the contract, the Client requests performance/execution of the service or delivery within a shorter period of time, this shall constitute a change to the contract. As a result, overtime may become necessary and/or additional costs may arise due to the acceleration of material procurement/work, and the Contractor's remuneration shall be increased appropriately in proportion to the necessary additional expendi-ture.
4.7. Partial deliveries and services that are objectively justified are permissible and can be invoiced separately.
4.8. The Contractor shall be entitled to use subcontractors for the performance of the contract.
5. PERFORMANCE DEADLINES, DELIVERY DEADLINES AND DATES
5.1. Unless expressly agreed in writing as binding, performance/delivery deadlines and date shall not be binding.
5.2. Binding performance/delivery deadlines and dates shall be based on the information in the written order con-firmation, contract deed, the Contractor's offer or the individually agreed terms of delivery and payment.
5.3. Binding performance/delivery deadlines and date may be extended or, respectively, postponed by the Con-tractor in the event of a delay due to force majeure or unforeseeable disruptions/interruptions or a delay for which the Client is responsible. The same shall apply in the event of a change/addition to the object of delivery /service or, respectively, order by the Client.
5.4. Unforeseeable disruptions/interruptions" and "force majeure" include, for example, epidemics/pandemics, war, natural disasters, natural forces, strikes, official blocks, import and export blocks, incidents in production, shortages of raw materials and goods, traffic disruptions or failure of other external services required for the fulfilment of the contract, which make the fulfilment of the contract considerably more difficult or temporarily impossible for the Contractor, irrespective of whether they occur at the Contractor's, their suppliers/business partners' or third parties' premises.
5.5. Exceeding a non-binding performance or delivery deadline or deviating from a non-binding date shall not con-stitute a default on the part of the Contractor. In this case, the information in the order confirmation, the con-tract, the offer or the terms of delivery and payment shall only serve the Client as an approximate guideline and the Contractor shall perform its service/delivery within a reasonable period of time. Unforeseeable disrup-tions/interruptions, force majeure and delays for which the Client is responsible shall also be taken into ac-count in this respect.
5.6. In the event of a delay in the performance of the contract by the Contractor, the Client shall be entitled to withdraw from the contract after setting a reasonable period of grace of at least 6 months. The grace period must be set in writing (by registered letter for entrepreneurial Client), under simultaneous threat of withdraw-al.
5.7. In the case of non-binding delivery deadlines and dates, the Client shall also be entitled to this right of with-drawal in the event of a longer delay in delivery/shipment (at least 18 months).
5.8. In the event that the Contractor's delivery or performance of services is suspended for more than 18 months due to force majeure or an unforeseeable disruption/interruption, the Client shall be entitled to withdraw from the contract. However, the Client cannot derive any claims against the Contractor from such a withdrawal.
6.1. The prices of the Contractor are variable prices which are subject to change. They are based on the calculation basis on the day of the conclusion of the contract (e.g. material prices, labour costs, etc.) and are net prices without any deductions.
6.2. The fee shall be adjusted downwards or upwards if there has been a change in the basis of calculation of at least 5% between the date of conclusion of the contract and the date of actual performance/delivery. The ad-justment shall be made to the extent that the costs at the time of conclusion of the contract have changed compared to those at the time of the actual performance/delivery, provided that the Contractor is not in de-fault. If there is an adjustment of more than 15%, the Contractor shall inform the Client of this without delay.
6.3. The Contractor shall have an additional claim to reasonable remuneration for deliveries/services ordered by the Client that are not covered by the original order.
6.4. The Client shall additionally bear any statutory value-added tax, tolls and road charges, packaging, transport, loading and shipping costs as well as customs duties, levies and insurances to be paid. Consumers are explicitly advised that such additional costs may be incurred.
Such costs cannot reasonably be calculated in advance as they are subject to market price fluctuations.
6.5. If no or no deviating information is given on the currency of the price, the currency shall be EURO (€).
6.6. The fee for continuing obligations (“Dauerschuldverhältnisse”) shall be value-assured on the basis of the con-sumer price index, 2015 series, as calculated and published by Statistics Austria. The index figure calculated for the month in which the contract is concluded shall serve as the basis. The value shall be secured on the basis of the latest available index figure in January of each year. The calculation shall be carried out by the Contractor. The basis for further calculation shall in each case be the last index figure that led to an actual change in the remuneration. If the consumer price index, 2015 series, is no longer published, the index which corresponds most closely to this index shall be used as the basis for the value guarantee. The non-assertion of the increase of the fee on the basis of the value guarantee as well as the non-payment of increase amounts shall not be deemed to be a waiver of the value guarantee of the fee, irrespective of their duration.
7. INVOICING, TERMS OF PAYMENT, DOWN PYMENTS
7.1. The Client expressly agrees that invoices may also be issued and transmitted to it electronically at the Contrac-tor's discretion.
7.2. Invoice amounts shall be due for payment no later than 14 days after the invoice has been issued, unless other payment agreements have been made. In the case of entrepreneurial Clients, deviating payment agreements shall only be binding for the Contractor if they have been agreed in writing.
7.3. Payment shall be made by transfer to an account specified by the Contractor or in the contractually agreed form free of charges and deductions in the invoiced currency.
7.4. The entitlement to deduct a discount shall require an express agreement in writing in the case of an entrepre-neurial Client.
7.5. Payment dedications made by the Client shall not be binding for the Contractor.
7.6. The Contractor shall be entitled to issue interims or partial invoices for partial services/deliveries already ren-dered before completion of the order.
7.7. The Contractor shall be entitled to demand provision of a security by the Client for the outstanding fee. The amount of the security shall generally be 25% of the outstanding fee. The costs of the security shall be borne by the Client.
7.8. The Client shall provide this security within 14 days of the Contractor's request.
If the Client does not comply with the Contractor's request to provide a security, or does not sufficiently com-ply with it or does not comply with it in good time, the Contractor may refuse performance. In this case, the Contractor shall be entitled to withdraw from the contract by granting a grace period of another 14 days.
7.9. In the event of a delay in payment by the Client, the entrepreneurial Client shall pay default interest in the amount of 9.2 percentage points above the base interest rate of the Austrian National Bank, but at least 12% p.a., and a consumer shall pay default interest in the amount of 4% p.a.. These shall be deemed to be agreed.
7.10. The right to claim further damage caused by default is reserved, however, vis-à-vis consumers as Client this shall only apply if this is negotiated in detail. The Client shall compensate the Contractor or third parties com-missioned by the Contractor (e.g. debt collection agencies, lawyers, etc.) for any damage caused by the Client's default, in particular the necessary costs of appropriate out-of-court debt collection or recovery measures.
7.11. For the Contractor's own reminder letters, a flat rate of € 10.00 shall be charged per reminder letter, which shall be paid by the Client.
7.12. If the entrepreneurial Client defaults on payment under other contractual relationships with the Contractor, the Contractor shall be entitled to suspend fulfilment of its obligations under this contract until fulfilment by the Client.
7.13. If the payment deadline is exceeded, any remuneration granted (discounts, deductions, etc.) shall be forfeited and added to the invoice.
7.14. Unless otherwise agreed, the following terms of payment shall apply:
Down payment of 50% of the agreed fee within 14 days after conclusion of the contract,
Down payment of 40% of the agreed fee within 3 months after having placed the order,
10 % of the fee after performance has been proved or, respectively, after service has been completed in the course of the final invoice, at the latest, however, within 8 months after placement of the order.
8. SET-OFF AN RETENTION RIGHTS, ASSIGNMENTE OF CLAIMS
8.1. The Client shall only be entitled to offset counterclaims to the extent that counterclaims have been estab-lished by a court or recognised by the Contractor. Consumers shall also have a set-off right insofar as the counterclaims are legally connected with the Client's liabilities arising from the order, as well as in the event of the Contractor's insolvency.
8.2. The Client is not entitled to assign claims and rights arising from the contractual relationship without the Contractor's consent. In the case of entrepreneurial Clients, this consent must be given in writing.
8.3. The entrepreneurial Client must not withhold payments unless the Contractor is in unjustified default of payment. The Client's right of retention shall also expire when this ground ceases to exist.
9. COOPERATION OBLIGATIONS OF THE CLIENT
9.1. The Contractor's obligation to provide the service/delivery shall commence at the earliest at the time at which the Client has created all structural, technical as well as legal prerequisites for execution and the Contractor has provided all necessary information and/or planning documents for the provision of the service/delivery.
9.2. The Client shall be liable for ensuring that the necessary structural, technical and legal prerequisites for the execution of the object of delivery /service are continuously in place. This applies in particular to the subsoil (geology, stability, etc.) on which the object of delivery /service is to be executed.
9.3. If the Client is aware or, respectively, should the Client have been aware of reasons that could delay the provi-sion of the delivery/service, the Client shall inform the Contractor in writing of these reasons for a possible de-lay immediately, but at least 1 month before the planned delivery/provision of service.
9.4. The Client shall arrange for or, respectively, obtain the necessary permits from third parties as well as notifica-tions and permits from authorities at its own expense.
9.5. The operating materials and consumables required for the execution, in particular for installation and/or com-missioning measures, such as energy, water, fuel, etc., shall be provided by the Client at its expense. If neces-sary, the Client shall also provide accommodation facilities on site.
9.6. The Client shall ensure that the necessary access path or road to the place of performance for the deliv-ery/provision of service is given.
9.7. The Client shall ensure that the construction site and the object of delivery /service are secured, in particular against theft, vandalism and damage due to external influences (e.g. weather), that the companies present on the construction site are coordinated as well as that signs are put up indicating their respective responsibilities in the sense of the relevant statutory provisions.
9.8. If the object of delivery /service is not insured, the Client shall arrange for insurance cover at its own expense.
9.9. If the transfer of risk has not already taken place with the dispatch to the Client, the risk of complete or partial loss of the object of delivery /service shall pass to the Client with its delivery at the place of installation (con-struction site), irrespective of the agreed retention of title.
9.10. If the Client does not comply with these duties to cooperate,
the Contractor's performance shall not be defective insofar as the defectiveness is due to the Client's lack of duty to cooperate;
the Contractor is not in default with the delivery/provision of service provision;
the Client shall compensate the Contractor for any damage incurred by the Contractor as a result of the breach of the duty to cooperate;
the Contractor may withdraw from the contract by granting a grace period of 14 days.
10. DELIVERY, TRANSFER OF RISK
10.1. Unless otherwise agreed, delivery shall be made in accordance with Incoterms 2010 CPT (Carriage Paid To/carriage paid).
10.2. In the case of CPT, the risk and danger shall pass to the Client when the object of delivery is handed over to the carrier.
10.3. The Client must guarantee access (without risk, legally permissible) to the agreed place of destination.
10.4. Unloading of the object of delivery shall be carried out by the Client or, respectively, by third parties commis-sioned by it. The Client shall bear the relevant costs as well as the risk and danger of unloading.
10.5. In the case of delivery by the Contractor or third parties commissioned by the Contractor, unloading must be possible or, respectively, take place immediately upon arrival at the unloading point / place of destination.
10.6. In the event of self-collection (Incoterms 2010 EXW (Ex Works), the Contractor reserves the right to refuse the loading of means of transport that are not operationally safe or unsuitable for transport in individual cases.
10.7. The costs for any soiling/damage to roads, pavements, parts of buildings, land, bodies of water etc. in connec-tion with deliveries shall be borne by the Client.
10.8. The Contractor shall only be obliged to take back packaging material if this has been expressly agreed. This shall be disposed of by the Client at its own expense.
10.9. Partial deliveries are permissible.
11. DEFAULT OF ACCEPTANCE
11.1. If the Client is in default of acceptance for more than 14 days (e.g. refusal of acceptance, default in advance performance, etc.) and if the Client, despite having been granted a reasonable grace period, has not remedied the circumstances for which it is responsible and which delay or prevent the delivery/provision of service, the Contractor may – with a currently valid contract - otherwise dispose of the devices, materials, products, goods and works specified for the delivery/provision of service, provided that the Contractor, in case of continuation of the delivery/provision of service, procures them again or, respectively, provides them again within a period of time which is reasonable under the respective circumstances.
11.2. In the event of default of acceptance on the part of the Client, SynCraft shall also be entitled, if it insists on performance of the contract, to store the object of delivery/service on its premises or those of third parties, for which the Contractor shall be entitled to a reasonable storage fee of at least 1% of the value of the goods per month. This shall also apply mutatis mutandis if dispatch is delayed at the request of the Client.
11.3. If the shipping costs increase due to the delay in acceptance or due to the request of the Client, the Client shall bear the additional costs.
11.4. In the case of entrepreneurial Clients, SynCraft may also store the object of delivery /service in a public ware-house of a third party or sell it by way of a self-help sale (“Selbsthilfeverkauf”) as defined by the Austrian Commercial Code (Unternehmensgesetzbuch; UGB). In the event of a planned self-help sale, the Contractor shall again ask the Client in writing beforehand to accept the object of delivery /service on pain of the self-help sale.
11.5. The possibilities described in this point can also be combined by the Contractor and do not reciprocally ex-clude each other.
11.6. This shall not affect the Contractor's right to demand payment for deliveries made or services rendered and to withdraw from the contract after a reasonable period of grace.
11.7. In the event of default of acceptance or delays in delivery/ provision of service for which the Contractor is not responsible, the Contractor shall be entitled to withdraw from the contract by setting a grace period. If partial deliveries/services have already been provided, the Contractor may also withdraw from only one part.
12. RETENTION OF TITLE, ADVANCE PAYMENTS, SECURIETIES
12.1. Objects of delivery/service delivered or otherwise handed over, in particular components, products, goods and plans, shall remain the property of the Contractor until full payment of the fee.
12.2. The Contractor's ownership of the object of delivery /service shall not cease to exist as a result of treat-ing/processing, mixing or combining with other materials, products, goods, works or buildings of the Client. In this case, the Contractor shall acquire co-ownership of the newly created object in the ratio of the value of the object of delivery /service to the value of the treated/processed or mixed material, product, goods, work or building of the Client.
12.3. For the duration of the retention of title, the Client shall be obliged to keep the object of delivery /service in proper condition, to have all maintenance work and necessary repairs provided for by the manufactur-er/Contractor carried out without delay - apart from emergencies - by the Contractor or by a company recog-nised for the care of the object of delivery /service of the Contractor.
12.4. A resale shall only be permissible if the Contractor has been notified of such resale in good time in advance, stating the name and address of the purchaser and if the Contractor has given its written consent to the resale. In the event of the Contractor's consent, the purchase price claim of the entrepreneurial Client shall already be deemed to have been assigned to the Contractor and the latter shall accept the assignment.
12.5. The Client undertakes to carry out all publicity acts required for an effective assignment of the claim.
12.6. The entrepreneurial Client shall in particular note this assignment in its books and on its invoices until the fee or purchase price has been paid in full and shall draw the attention of its debtors to this assignment.
12.7. The Client is authorised to collect this claim on behalf of the Contractor until this right has been revoked. Upon request, the Client shall provide the Contractor with all documents and information required for the assertion of the assigned claims and receivables.
12.8. Furthermore, the entrepreneurial Client undertakes to also oblige its customer to resell the object of delivery /service only subject to extended retention of title and advance assignment of its claim (“Vorausabtretung”).
12.9. If the Client is in default of payment, the Contractor shall be entitled to demand the return of the object of delivery /service subject to retention of title after having set a reasonable grace period of at least 14 days. The Contractor may only exercise this right vis-à-vis the Clients which are consumers if at least one of the consum-er's outstanding payments has been due for at least six weeks and the Contractor has issued a reminder letter threatening this legal consequence and set a grace period of at least two weeks, which was fruitless.
12.10. The Client shall notify the Contractor without delay of the opening of insolvency proceedings over its assets or of the seizure of the object of delivery /service subject to retention of title. This shall also apply in the event third parties take hold thereof in any way whatsoever. In this case, the Client shall inform courts, authorities and third parties taking hold of the retention of title.
12.11. The Client shall be liable for all costs that have to be incurred in order to lift a seizure, to take hold of the object of delivery /service subject to retention of title or to replace the object of delivery / service.
12.12. The Client expressly agrees that the Contractor or a third party commissioned by it may enter the site of the object of the delivery /service subject to retention of title in order to assert its retention of title.
12.13. The assertion of the reservation of title shall only constitute a withdrawal from the contract if this is expressly declared.
12.14. The objects of delivery/service which the Contractor has taken back in this context may be realised freely and in the best possible way vis-à-vis entrepreneurial Clients.
12.15. In the event of insolvency proceedings against the entrepreneurial Client with simultaneous continuation of the company as going concern, the Contractor reserves the right, for the duration of the continuation of the company as going concern, either to demand a deposit for deliveries and services in the amount of the average credit risk (average of the last 6 months) or to make deliveries and services dependent on the Client's advance performance or to provide them only concurrently against cash payment.
12.16. If the Client is more than 4 weeks in default with payments, the Contractor may suspend/interrupt deliveries and services until the Client has provided an appropriate security. The Client may not derive any claims against the Contractor therefrom.
12.17. If the choice of law made by the contracting parties is not applicable or is declared inadmissible and the nation-al law applicable to the contractual relationship in this case does not recognise/permit the retention of title, the contracting parties shall agree on a means of security which, from an economic point of view, comes as close as possible to this. The Client shall bear all costs, for example for legal advice, in this connection. In the event that no close means of security exists or is not recognised as equivalent by the Contractor, the Client shall provide the Contractor with another equivalent means of security at its own expense.
13.1. The Contractor shall not assume any warranty vis-à-vis entrepreneurial Clients for specific properties of the object of delivery /service or for the fact that it is suitable for a specific purpose, unless the Contractor has ex-pressly warranted these properties in writing.
13.2. The warranty period for entrepreneurial Clients shall be 12 months from acceptance. The warranty period for wearing parts of the object of delivery /service (see documentation/operating instructions) is set at 1 month for entrepreneurial Clients.
13.3. If a joint handover is planned and the Client fails to attend the handover date notified to it, acceptance shall be deemed to have taken place on that date.
13.4. The presumption according to sec. 924 sentence 2 of the Austrian Civil Code (Allgemeines Bürgerliches Ge-setzbuch; ABGB) is excluded for entrepreneurial Clients. The entrepreneurial Client must always prove that the defect was already present at the time of handover.
13.5. Notifications by the entrepreneurial Client regarding possible warranty claims must be received by the Contrac-tor in writing within 14 days upon discovery of the alleged defect and must contain the following information:
Which object of delivery /service or part thereof has the alleged defect
What is the alleged defect
Description of the circumstances under which the defect has occurred or is occurring.
13.6. The Client shall request the Contractor to remedy the defect within a reasonable period of time, but at least within 1 month. If the Client remedies the defect itself or has it remedied by third parties without a corre-sponding prior request or, respectively, refusal by the Contractor, the Client shall thereby waive the reim-bursement of the costs of remedying the defect by the Contractor.
13.7. The remediation of a defect claimed by the Client shall not constitute an acknowledgement of a defect.
13.8. The Contractor shall be granted at least two attempts by an entrepreneurial Client to remedy the defect.
13.9. If the Client's allegations of defects are unjustified, the Client shall be obliged to reimburse the Contractor for the expenses incurred for the determination of the absence of defects or the rectification of defects.
13.10. In order to remedy defects, the Client shall make the site of the object of delivery /service accessible to the Contractor without culpable delay and grant the Contractor or an expert appointed by the Contractor the op-portunity to inspect it.
13.11. The entrepreneurial Client shall notify the Contractor in writing by registered letter within 14 days of any de-fects which the entrepreneurial Client has discovered or should have discovered in the ordinary course of business after dispatch or handover of the object of purchase/goods, failing which the entrepreneurial Client shall lose its rights within the meaning of sec. 377 of the Austrian Commercial Code (Unterneh-mensgesetzbuch; UGB).
13.12. In the event that the object of purchase is to be further processed, the entrepreneurial Client undertakes to inspect the object of purchase prior to processing and to notify the Contractor of any defects without delay, at the latest, however, within the period specified above.
13.13. Any use or processing of the defective object of delivery /service, through which an imminent threat to cause damage or further damage arises or through which it is made difficult or impossible to determine the cause, shall be discontinued by the Client without delay, unless this is unreasonable.
13.14. If defects were not recognisable upon proper inspection by the Client (hidden defect) and if they only become apparent after the aforementioned period, they must be notified to the Contractor in writing by registered let-ter within 14 days after they have become apparent, otherwise the Contractor shall lose its rights within the meaning of sec. 377 of the Austrian Commercial Code (Unternehmensgesetzbuch; UGB). This obligation to give notice of defects shall also apply mutatis mutandis to the entrepreneurial Client in the event of an incorrect delivery or an error in quantity, unless the object of delivery obviously deviates from the order to such an ex-tent that the Contractor had to consider the entrepreneurial Client's acceptance to be excluded.
13.15. Any recourse of the entrepreneurial Client against the Contractor pursuant to sec. 933b of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) is excluded.
13.16. The costs for the return transport of the defective object to the Contractor shall be borne in full by the entre-preneurial Client.
13.17. The Client shall be obliged to enable the Contractor to determine the defect without delay.
13.18. The Contractor shall have the right to enter the Client's facility supplied/provided by it at any time during the warranty period for the purpose of control or inspection. The Client shall be informed thereof in advance.
13.19. Within the framework of the warranty, the Contractor shall be entitled, to replace defective objects of delivery /service or components thereof with objects of delivery /service or components of the same quality or to credit the Client with an amount corresponding to the price reduction if, in the Contractor's view, repair is not possible or economically reasonable.
13.20. Replaced defective objects of delivery /service or components shall become the property of the Contractor.
14. LIABILITY / COMPENSTAION FOR DAMAGES
14.1. The Contractor shall be liable to entrepreneurial Clients, with the exception of personal injury, only in cases of intent or gross negligence.
14.2. Liability towards entrepreneurial Clients shall be limited to the maximum liability amount of any liability insur-ance taken out by the Contractor. If such insurance does not exist, a maximum liability amount of 10% of the of-fer price shall be agreed.
14.3. Furthermore, liability for loss of profit, indirect damage and consequential damage, in particular for loss of use/production, plant downtime, capital and operating costs, is excluded.
14.4. These limitations shall also apply with regard to damage to an object which the Contractor has taken over for processing. However, this shall only apply to consumers if this has been negotiated in an individual contract.
14.5. Claims for damages by entrepreneurial Clients shall be asserted in court within 2 years in the case of immova-ble property and within 1 year in the case of movable property from the date of knowledge of the damage and the damaging party, otherwise they shall be forfeited. The limitation period of 30 years shall be reduced to 10 years.
14.6. In the event of damage, the entrepreneurial Client shall bear the burden of proof for any fault on the part of the Contractor. The statutory reversal of the burden of proof for claims for damages arising from the contract shall not apply.
14.7. The liability of the Contractor is excluded for damage caused by improper use, handling, storage or faulty pro-cessing of the object of delivery /service by the Client or third parties attributable to the Client as well as natu-ral wear and tear. This is in particular the case if wearing parts are not replaced in good time, original spare parts are not installed, or the systems/devices are not used in accordance with the information in the operating in-structions/maintenance manuals or are operated by untrained and unauthorised specialist personnel.
14.8. Those product characteristics shall be owed which can be expected by the Client with regard to the licensing regulations and other product-related instructions and information of the Contractor, third party manufacturers or importers, taking into account its knowledge and experience. The Client as reseller shall take out sufficient insurance for product liability claims and shall indemnify and hold the Contractor harmless and reimburse the Contractor in respect of recourse claims.
14.9. In the event of a justified withdrawal from the contract by the Client, the Contractor shall be entitled to de-mand from the entrepreneurial Client lump-sum damages, irrespective of fault and not subject to judicial miti-gation, in the amount of 25 % of the order value plus VAT, without having to prove any damage. The assertion of a higher damage is permissible. This right only exists vis-à-vis consumers if it is negotiated in the individual case.
15. INTELLECTUAL PROPERTY, THIRD PARTY RIGHTS, CONFIDENTIALITY
15.1. The Contractor reserves all copyrights, in particular the rights of use and exploitation, to the works/documents created by it, in particular plans, brochures, technical documents, models, etc.
15.2. Any use, in particular processing, execution, duplication, dissemination, public presentation, making available of the works/documents or parts thereof shall only be permitted with the express consent of the Contractor. All works/documents may only be used for the purposes expressly stipulated when the order is placed or stipu-lated in a subsequent agreement.
15.3. The Client shall be obliged to provide all works of the Contractor with a copyright designation (name, company name, business name) or, respectively, the Client shall be prohibited from removing existing copyright designa-tions without the consent of the Contractor.
15.4. The Contractor shall be entitled, and the Client shall be obliged, to state the name, company name or business name of the Contractor in publications or announcements about joint projects.
15.5. In the event of a breach of these provisions for the protection of the Contractor's works/documents, the Con-tractor shall be entitled to a contractual penalty in the amount of twice the reasonable fee for the unauthor-ised use, whereby the right to assert a claim for damages in excess thereof shall be reserved. The burden of proof that the Client has not used the Contractor's works/documents shall be incumbent upon the Client.
15.6. For works which the Contractor produces in accordance with the Client's documents, the Client shall exclusive-ly warrant that the production of these works does not infringe any third-party property rights.
15.7. If the Client contributes intellectual creations or documents and if third party property rights are asserted with regard to such creations, the Contractor shall be entitled to stop the production of the object of delivery /service at the Client’s risk until the third-party rights have been clarified and to claim reimbursement of the necessary and appropriate costs incurred by the Contractor, unless the claims of third parties are manifestly unjustified. The Client shall indemnify and hold the Contractor harmless in this regard.
15.8. Furthermore, the contracting parties (with the following exception) mutually undertake to maintain secrecy vis-à-vis third parties with regard to the knowledge they have obtained from the business relationship. The Con-tractor shall be obliged to keep its planning activities secret if and as long as the Client has a justified interest in such secrecy.
15.9. After execution of the order, the Contractor shall be entitled to publish the contractual work in whole or in part for advertising purposes, unless otherwise agreed in the contract.
16. PREVENTION OF MONEY LAUNDERING, TERRORISM FINANCINT AND CORRUPTION
16.1. The Contractor undertakes to comply comprehensively with all statutory requirements for the prevention of money laundering, terrorism financing and corruption. The Client's attention is drawn to the fact that the Con-tractor is obliged to take certain measures (e.g. establishing the identity of the Client, obtaining information on the purpose and the intended type of business relationship, reporting to the money laundering reporting of-fice in the event of suspicion, etc.) in the case of cash payments above a legally prescribed threshold value.
16.2. The Client assures that its payments to the Contractor do not result from criminal offences.
16.3. The Client shall be obliged to cooperate in connection with the prevention of money laundering, terrorism financing and corruption. The Contractor shall be entitled to terminate the respective agreement with the Cli-ent with immediate effect by notifying the Client in writing if the Client fails to comply with its duty to cooper-ate within the meaning of this clause or if there is a justified suspicion that the business relationship is being used for money laundering, terrorism financing or acts of corruption.
16.4. The Client may not derive any claims against the Contractor from such a withdrawal.
17. CHOICE OF LAW, PLACE OF PERFORMANCE, PLACE OF JURISDICTION
17.1. The contracts concluded with the Contractor shall be governed by Austrian law, with the exception of its con-flict-of-law rules and the UN Convention on Contracts for the International Sale of Goods.
17.2. The place of performance shall generally be the Contractor's registered office, unless another place of perfor-mance has been agreed. Only a written agreement shall be binding for the Contractor vis-à-vis entrepreneurial Clients. The place of performance for plant realisations shall be the place of installation in accordance with the respective offer, order or contract.
17.3. The place of jurisdiction for disputes between entrepreneurial Clients and the Contractor shall be the court having ratione materiae and loci for the Contractor's registered office. The Contractor shall, however, be free to bring disputes before another court with legal jurisdiction, in particular the general place of jurisdiction of the entrepreneurial Client.
18. SEVERABILITY CLAUSE
18.1. Should any provision of these GTC be wholly or partially invalid, void or unenforceable, this shall not invalidate the remaining provision of the GTC. The remaining contents of the GTC shall remain unaffected thereof and in this case the contracting parties shall agree on a provision that comes as close as possible to the legal and eco-nomic result of the ineffective, invalid or unenforceable provision and is not ineffective, invalid or unenforcea-ble.
19.1. The contract language is German. If these GTC exist in several language versions, the German version shall be authoritative and binding. Translations of these GTC are for information purposes only.
19.2. Amendments of and supplements to the contract must be made in writing in the case of entrepreneurial Cli-ents in order to be legally effective. This shall also apply to any waiver of the written form clause. Consumers must send offers to amend or supplement the contract to the Contractor in writing. The Contractor already now gives notice that it is not interested in oral arrangements and/or agreements. Insofar as the Contractor does not give written consent or the arrangements and agreements are not recorded in writing, the discussions shall be regarded as non-binding contract negotiations.
19.3. The Client shall inform the Contractor of any change of address.
19.4. A declaration by the Contractor shall also be deemed to have been received by the Client if the Client has not notified the Contractor of a change of its address and the Contractor sends the declaration to the Client's last notified address.
19.5. For reasons of better readability for the Client, only the masculine form is used in the GTC. The female form is always included in the masculine form.
5th April 2022