TERMS OF SERVICE
for the project planning, construction, delivery and assembly, as well as maintenance of plants of the Rudolf BERTHOLD Gesellschaft m.b.H.
(As of March 2005)
1. Scope:
1.1. For all orders of the client, as well as order extensions and follow-up orders, the following conditions apply exclusively, unless another written agreement has been made in the order.
1.2. Terms and conditions of the contractor that deviate from these conditions do not apply to orders of the client that are issued on the basis of these terms and conditions. This also applies in the event that contrary terms and conditions are stated in an order confirmation or order placement by the contractor and remain unopposed by the client.
1.3. All agreements between contractor and client must be in writing, this also applies to the defiation from the formal requirement of the written form.
1.4. By placing the order with the client, the contractor recognizes the terms and conditions, including the exclusion of any of the contractor’s own terms and conditions, even if the contractor refers to his own terms and conditions in the order letter.
2. Project outlines | Project documents | Copyright:
2.1. In the event that no order is placed between the contractor and the client, the contractor is entitled to the amount of the charging of the settlement of the specific effort that was caused by inquiries from the client, in particular special requests and the development of project documents, planning procedures and project procedures.
2.2. All technical documents, sketches, plans etc. contained in cost estimates, project sketches and planning documents or drafts of the contractor, including any specifications, represent the exclusive intellectual property of the contractor.
2.2. All technical documents, sketches, plans etc. contained in cost estimates, project sketches and planning documents or drafts of the contractor, including any specifications, represent the exclusive intellectual property of the contractor.
3. Offers:
3.1. On the part of the contractor, offers are only made in writing, i.e. created by post by fax or email.
3.2. Acceptance of an offer by the client is only possible with regard to the entire service offered, but not with regard to individual parts. In the case of partial orders, a separate, modified agreement is required.
3.3. Acceptance of the offer must be made in writing. If the order is placed by fax, the original order must be submitted by post with an original signature. In the case of an order being placed by email, production using an authentic signature of the email is only valid with the consent of the contractor and prior agreement in the course of the bidding.
4. Order | Order Confirmation | Silence:
4.1. The basis of the order is always the content of the offer of the contractor. Deviating content in orders only becomes effective if the contractor confirms the order.
4.2. The silence of the contractor regarding an order of the client deviating from the offer expressly does not count as consent to the change of the order.
4.3. The applicability of § 362 HGB is expressly excluded. It is stipulated that silence in the contractual relationship between the client and the contractor, unless expressly agreed in individual cases – as is particularly the case in points 6 and 7 of these terms and conditions – has no explanatory value.
4.4. Orders of the customer only become effective if the order is based on a binding offer from the contractor and the contractor documents the conclusion of the contract by means of an order confirmation.
5. Prices:
5.1. The prices contained in the contractor’s offers are subject to change unless a fixed price has been expressly agreed in the offer.
5.2. In any case, i.e. even if there is a fixed price agreement, the contractor is entitled, for changes in wage costs and purchasing costs of the required components of any kind between the conclusion of the contract and the execution of the service, i.e. through changes in the legal prescreptions, official recommendations or official measures or changes in exchange or market-oriented prices to increase or decrease the position prices on which the order is based.
5.3. The offer of a complete system (system offers) is to be viewed as a fixed price agreement in the sense of the Civil Code.
6. Contract changes | Contract extension | Additional orders:
6.1. In the event that the client requests changes to the contract or the scope of the order is expanded or follow-up orders are placed, the contractor is entitled to a reasonable fee.
6.2. In this case, the contractor will submit a written supplementary offer to the client, the accuracy and amount of which is considered to be accepted by the client, unless the client demonstrably objects in writing within 8 days of receipt of the supplementary offer. In the event of an objection by the client, no contract change will take place and the contractor is not obliged to fulfill order changes or order extensions or supplementary or additional requests of the client.
6.3. If, as a result of an objection to an addendum, the processing of the entire order could not be continued or could only be continued with considerable difficulty, the contractor is entitled to pause the further processing of the order. Any damage that the contractor may suffer as a result of the delay caused by this, such as in particular downtimes, lot costs, storage costs, arrival and departure and standstill costs, must be compensated by the customer.
6.4. The contractor is entitled to make minor changes to the technical system when fulfilling the order, provided these changes correspond to the current state of the art and do not contradict the legitimate interests of the client or the planning principles.
7. Fulfillment of contract | Advance payments by the client | Transfer of risk:
7.1. The contractor is only obliged to fulfill the contractually owed work after the order has been placed in writing if all technical and contractual issues have been clarified at the same time as the order has been placed, and the contractor therefore also particularly has been made available all planning documents and plans or sketches, technical descriptions, as well as specifications and other technical information which the contractor needs to fulfill the order.
7.2. In the absence of any other agreements, expressly agreed INCOTERMS apply to the business relationship between the client and the contractor. In the event that no agreement has been reached “EXW” (ex works) applies as agreed to the risk, i.e. for the time of the transfer of risk, in particular in the event of the accidental loss of the work. For the question of determining the point in time at which the risk passes, the terms in item 14.2 of these terms and conditions also apply .
7.3. Insofar as obtaining the necessary third-party permits is necessary for the fulfillment of the order, in particular official permits, and insofar as preliminary work on the part of the client must be performed, such as in particular the provision of contractually agreed services or the power supply connections required for installation and commissioning, as well as the necessary supply and discharge lines, they have to be provided by the client.
7.4. Insofar as the customer does not provide the service, the contractor is entitled to choose to stop further fulfillment of the contract and to provide the service, in which case the contractor’s damage will be borne by the customer, or the contractor is authorized to issue prescribed official approvals in his name and to obtain on account of the customer, as well as to have the necessary power supply connections, as well as other supply and discharge lines, established at his expense.
7.5. The client must ensure that the place of performance is easily accessible by the contractor’s employees in the event of assembly, and that there are also secure, lockable rooms for storing components, materials and tools on site. This provision on the part of the contractor is to be provided free of charge.
7.6. Furthermore, the contractor must provide the energy required for the execution of the order including a trial run, as well as other raw materials free of charge.
7.7. If a trial run is not possible for reasons for which the client is responsible (in particular point 7.6.) so that the client does not provide the necessary energy for the trial run or the other components (raw materials, software, specifications, etc.), the completely assembled system is to be regarded as approved and accepted by the customer, if a notice of defecter is not raised later than 8 days after the completion of the assembly in writing (content-specific and sufficiently concrete).
7.8. In the event of an urgent service, the contractor is entitled to charge the contractor for the additional costs arising from this, in particular as a result of additional costs due to overtime surcharges, more expensive travel costs due to the choice of a faster means of transport, possibly higher stay and accommodation costs, as well as costs for faster material procurement.
8. Performance periods | Deadlines:
8.1. Delivery times and completion dates contained in offers, orders and order confirmations are only to be regarded as fixed end dates if the delivery dates or completion dates have been bindingly confirmed in writing as the end dates.
8.2. In the event that the start of the fulfillment of the contract is delayed by the customer or customer-related circumstances and the delay is not the responsibility of the contractor, even with binding commitment of fixed end dates and guaranteed deadlines, these will be extended by the time period of the late start of the performance. If the contractor incurs additional costs due to such a postponement of the final date, these must be borne by the client..
8.3. In the event of force majeure, in particular in the event of disasters, unrest, war turmoil or in the event of a work stoppage or industrial dispute, whether in the sphere of the client or contractor, there is no binding of both contracting parties to agreed delivery times or acceptance dates and in this case has to be agreed on a new date for the provision of services by mutual agreement between the two contracting parties. It is expressly stated that in the event of force majeure, one of the two contracting parties will not be in delay.
8.4. Should the contractor not be able to fulfill the order due to a delayed start of the fulfillment of the order for which the customer is responsible, or within a delayed period because, for example, through fixed planning of assembly times and work group times, the necessary resources for order processing or assembly ( human and other) are no longer available in the postponed period, the contractor is entitled to request the agreement of a new service period or a new schedule with the client. In the event that the creation of a new schedule or new performance deadlines is rejected on the part of the client, the contractor is entitled to refrain from further processing of the order, to also declare the contract withdrawal and all services performed so far, be it planning and project work , also to invoice manufacturing work, as well as to deliver and invoice components that have already been created, regardless of any assembly that may still be necessary, and to demand the fulfillment interest, including the loss of profit, regardless of any further damage incurred by the contractor.
8.5. As an alternative to this, the contractor has the right to choose to use created components elsewhere instead of delivering them.
9. Components provided | Advance work:
9.1. Insofar as components are provided on the part of the contractor, be it hardware or software components or other preliminary work on the part of the contractor or insofar as after completion of the services by the contractor, other services are initiated by the contractor on the work completed by the contractor, these components and services are not subject to the guarantee of the contractor.
9.2. Insofar as the customer intervenes in the services of the contractor through components provided by the customer or preliminary work or services provided by third parties or by the customer himself after the services of the contractor have been completed, or components that have been created, delivered, and possibly also assembled by the contractor are intervened , the warranty of the contractor is also not applicable, unless the contractor’s express consent has been given and there is a written additional agreement on the warranty for these cases.
9.3. For components provided by the customer, it is irrelevant whether they are new or used components. In all cases, the client is liable for the functionality and suitability. If defective components are provided by the customer, then point 7 of these general terms and conditions is applicable, in particular point 7.3. with regard to any further expenses incurred by the contractor, as well as any damage to the contractor caused thereby, in particular also the terms of point 15.
9.4. A warranty within the meaning of point 14 of this agreement expressly does not apply to components provided by the customer.
10. Payment modalities:
10.1. If no other agreements have been made in the contract, one third of the total order volume must be paid after the order has been palced and the 1st partial invoice by the contractor has been rendered, and in those cases in which fixed system components are only delivered and not assembled, the remaining two thirds against partial or final accounting on delivery; if, in addition to delivery, assembly must also take place, a further third is to be paid against partial accounting upon delivery and the last third after completion of the assembly work and any commissioning on site after partial or final accounting.
10.2. If there are delays in the provision of services by the contractor for which the client is responsible, the contractor is entitled, irrespective of the agreement of other payment modalities in the contract or the present terms and conditions, to offset those services that have already been rendered by partial invoice and to immediately pay them . This also applies to claims for damages by the contractor and additional costs of the contractor, which arise during the provision of services and may be offset on the basis of these terms and conditions or the contract.
10.3. If the contractor gains knowledge of conditions of the creditworthiness of the client after conclusion of the contract, even in the execution stage of the order, and thus a lack of solvency or a poor economic situation of the client is known, the contractor is entitled that the services rendered are to be fully invoiced and due and, with regard to the total order volume that has not yet been paid by the client, to request a security, for example, by submitting an abstract bank guarantee or a bank bill accepted by a well-known bank or by judicial or fiduciary submission of the outstanding sum from the court, lawyers or notaries.
11. Exclusion of set-off | Additional costs | Dunning services:
11.1. The client is not entitled to offset (compensate or offset) claims for whatever legal reason with claims of the contractor. This also applies in the event that the customer’s claim is legally or actually connected to the order in question, as long as the justification for the counterclaim has not been determined by the court.
11.2. If the order processing requires the involvement of extrajudicial experts or independent experts, including legal fees as a result of the client’s delay, these must be borne entirely by the client.
11.3. The contractor is entitled to invoice at least € 15.00 plus any applicable value-added tax for own reminders created in-house. If additional expenses are incurred with the reminder service, the contractor is also entitled to invoice them based on their actual expenditure. In particular, one has to think of the additional working hours arising from the deployment of personnel resources in the dunning process or in order processing in the amount of the hourly rate per employee agreed in the main contract or in the amount of the hourly rate of the individual employees that is normally charged to customers.
11.4. Insofar as the contractor obtains legal assistance in the dunning process, the client is also obliged to bear the costs associated with the legal and extrajudicial activity in accordance with the guidelines of the Lawyers’ Tariff Law and the autonomous fee guidelines and will be used in the event that the contractor asserts the outstanding claim in court expressly agreed that legal reminders are not included in the judicial standard rate, the contractor is therefore entitled to assert them in the context of the other contractual damages.
12. Retention of title:
12.1. All services performed by the contractor or delivered and assembled components remain the property of the contractor until full payment.
12.2. If there is a delay in payment on the part of the customer or if the creditworthiness of the customer is justifiably questioned by the contractor, the contractor is entitled to dismantle and / or take back the services and components, as well as devices (including software components), which are subject to reservation of property, without that a withdrawal from the contract is thereby intended.
13. Subsequent delivery guarantee:
For hardware components delivered by the contractor, there is a guarantee of a subsequent delivery of 7 years from the time the full service is provided. For plants and components that are older than 7 years, the contractor cannot give a guarantee for the availability of components and spare parts.
14. Warranty:
14.1. It is agreed that there are no guarantees in the sense of § 928 ABGB (Austrian Civil Law) for open defects that are already apparent during delivery or delivery on site and in the course of the assembly of the handover, takeover or commissioning.
14.2. Warranty periods are from dispatch or delivery to the customer, in the case of transport by third parties from the time the services or components are handed over to the carrier, if it is an agreed or customary mode of transport.
14.3. In the case of dispatch or delivery contracts without subsequent assembly by the contractor, the place of performance is the contractor’s registered office.
14.4. In the event that the contractor also has to carry out installation or commissioning, the warranty periods run from installation or commissioning of the system. The key date for this is the successful completion of a trial run by the contractor.
14.5. In the case of bilateral trade transactions, a mutually agreed warranty period of 12 months after delivery or commissioning is agreed.
14.6. In any case, the warranty period is limited by mutual agreement to a maximum of 18 months from delivery, regardless of the time of commissioning or completion of the positive trial operation.
15. Compensation:
15.1. The contractor is only obliged to pay compensation for damage caused culpably, but not for negligent or grossly negligent acts. Claims for damages on the part of the contractor exist only with regard to existing warranty claims. The customer is obliged to accept improvement or exchange in the sense of the guarantee beforehand, only if exchange or improvement is not possible, the customer is entitled to demand price reduction or claims for damages in the form of monetary compensation.
15.2. Compensation for any consequential damage caused by a defect is expressly excluded, provided that the client is not responsible for gross negligence or intent.
16. Product liability:
16.1. It is stated that the contractor’s product liability for standard or series parts, i.e. standardized components purchased by the contractor is completely excluded. In these cases, the customer is only to be informed of the producer or supplier of the contractor at the request of the client and the contractor will assign any existing claims for damages or other compensation to these producers or suppliers at the request of the client.
16.2. For all other services created or performed by the contractor, in particular also for components, goods, devices and systems delivered by the contractor, the contractor is not liable in all cases in which the service has been provided according to the respective state of the art in compliance with all related standards and regulations.
16.3. It is stated that the suitability and safety of the delivered products result from the approval regulations, the operating instructions or provisions regarding maintenance and operation. Beyond that, the contractor is not liable. This applies in particular to the case that delivered and installed systems correspond to the prescribed inspections or approvals, in particular TÜV approvals or comparable governmental or semi-governmental approvals, or that there are positive test or approval results.
17. Provided software | Oracle software:
17.1. If software is provided or purchased by the contractor for the fulfillment of the order, the use of this software is expressly permitted only in accordance with the respective existing software contracts or licensing provisions.
17.2. In particular, the customer is prohibited from using the provided software contrary to the provisions of the respective software contracts or license agreements.
17.3. If the contractor experiences legal difficulties with the respective software suppliers as a result of the client’s violation, the client undertakes to indemnify and hold the contractor completely harmless.
17.4 If Oracle software is provided by the contractor, this may only and exclusively be used in connection with software packages, components or systems of the contractor for which the Oracle software was originally implemented when the service was provided. The customer expressly acknowledges that the use of Oracle software for third-party products is not permitted. The client is also not permitted to intervene directly in the Oracle software or to install, duplicate, copy, etc. on its own on other computers. The client has only restricted the use of the Oracle software to the purpose of use in connection with software or components or systems of the contractor.
18. Place of fulfilment:
Unless otherwise contractually agreed, the place of fulfillment is 2486 Pottendorf, the registered office of the contractor’s company.
19. Choice of law:
Unless otherwise contractually agreed, only Austrian law is applicable to all orders of the contractor. The United Nations convention on contracts for the international sale of goods and the referral of Austrian international private law to other legal systems are excluded.
20. Place of jurisdiction:
The agreed exclusive place of jurisdiction for all disputes arising from contracts between the contractor and the client resulting from contracts or the termination of contracts is – unless otherwise contractually agreed – the locally and factually responsible court for the registered office of the contractor’s company.
21. General terms:
21.1. Written inquiries, communications of any kind are to be directed to the respective project manager, unless the contractor has expressly announced such, to the management of the contractor. The contractor’s employees on site are not entitled to receive such written communications with the effect that they are deemed to have been received by the contractor.
21.2. In addition to the above-mentioned forms of transmission by post, fax and email, the transmission via EDI or similar electronic transaction standards is also to be regarded as written.
21.3. Should a clause of this contract be or become ineffective or should the contract be incomplete, the remaining content of the contract will not be affected. The ineffective provision is to be replaced by a provision that economically comes closest to the meaning and purpose of the ineffective provision. Any contractual gaps or gaps in the agreement are to be filled in the same way.
PURCHASE CONDITIONS
the Rudolf BERTHOLD Gesellschaft m.b.H.
(As of March 2005)
1. Scope:
1.1. For all orders of the client, as well as order extensions and follow-up orders, the following conditions apply exclusively, unless another written agreement has been made in the order.
1.2. Terms and conditions of the contractor that deviate from these conditions do not apply to orders of the client that are issued on the basis of these terms and conditions. This also applies in the event that contrary terms and conditions are stated in an order confirmation or order placement by the contractor and remain uncontested on the part of the client.
1.3. All agreements between the client and the contractor must be in writing, this also applies to the deviation from the formal requirement of the written form.
1.4. By placing the order with the client, the contractor acknowledges the present terms and conditions including the exclusion of any of the contractor’s own terms and conditions, even if the contractor refers to his own terms and conditions in an order confirmation.
2. Order:
2.1. The order is based exclusively on the order placed by the client. Deviating content in order confirmations will only become effective if the client has given a positive counter-confirmation.
2.2. Verbal or telephone orders as well as additions and changes to orders that have already been placed are only binding for the client if confirmed in writing.
2.3. The day of ordering and thus the start of the delivery period (unless fixed delivery times have been agreed) is the date of dispatch of the order plus the average duration of the post, in the case of an oral order the date of dispatch of the written confirmation.
2.4. If the contractor intends to change the order or the delivery of any kind, these are only permitted if the customer has given written confirmation. If confirmation is not given by the client, the change proposed by the contractor is considered not approved and the original written order of the client continues to apply.
3. 3. Order confirmation:
3.1. The contractor must immediately confirm or reject the order in writing.
3.2. If the contractor does not receive a confirmation within eight days from the ordering date, the contract is concluded with the content of the order. In this case, the contractor’s silence within the meaning of Section 362 of the Austrian Commercial Code (HGB) applies as consent.
3.3. As long as the order has not come about through the order confirmation, with which the order is accepted in full, the customer is entitled to cancel the order without giving reasons. For the timeliness of the revocation, the demonstrable dispatch oft he receipt before the order confirmation by the contractor is sufficient.
3.4. If the confirmation letter from the contractor deviates from the order of the client in justified cases, deviations from the order must be clearly marked on the confirmation and require the explicit written consent of the client to be effective. The order is still valid without the consent of the client.
3.5. If the customer accepts a delivery that deviates from the order by the contractor without knowing the deviation, the unconditional acceptance of the goods does not count as approval of the order change.
3.6. If the order leaves the delivery periods or prices open in respect of all or individual items, the order is to be regarded as a quotation and the prices and delivery times, which are not mentioned in the order, must be added by the contractor in the order confirmation and supplemented by the contractor and returned to the client as an order confirmation regardless of their designation as an offer in the legal sense. In this case, a contract is only concluded after the customer confirms the changes.
3.7. If the order is supplemented by the contractor, even if the contract is accepted, the customer is entitled to cancel the order within ten days of receipt of the order confirmation, even without giving reasons.
4. Delivery period | Inspection | Storage | Notice of defects:
4.1. The delivery or service period begins to run on the day of the order, unless fixed dates have been contractually agreed.
4.2. The delivery date is the day on which the order item arrives at the delivery address specified in the order.
4.3. If no deadline has been agreed, delivery or payment is to be made immediately.
4.4. If the contractor cannot meet the agreed deadlines or those stipulated in these terms, the contractor must inform the client immediately in writing, stating the reasons and the expected delay. The delivery or service period will only be extended if this is expressly recognized by the client in writing.
4.5. Complete fulfillment of the contract is decisive for the timeliness of a delivery and / or service. Depending on the agreed scope of delivery and services, this also includes, in particular, the correct assembly, if necessary, and provision of the documentation, circuit diagrams, operating instructions etc. to the required or sufficient extent. Required training and instruction can also be included.
4.6. The customer is entitled to inspect the manufacture and the quality of the manufacture by the contractor after prior notice in the contractor’s production facility, as well as its subcontractors and upstream suppliers, to find out about the status of the work and quality commissioned or the delivery at contractor’s premises.
4.7. A delivery or service before the agreed date is only permitted with the consent of the client.
4.8. All legal consequences, such as in particular delay in delivery, are in any case based on the agreed date (payment deadline, guarantee, transfer of risk, etc.); the client only bears the liability of a depositary until the agreed date.
4.9. The customer is not obliged to examine the delivered item immediately after delivery or to report defects. The obligation to give notice of defects according to § 377 of the Austrian Commercials Code (HGB) is deemed to be waived. The contractor waives the objection of late notification of defects.
5. Prices | Payment terms:
5.1. Agreed prices are basically inclusive of documentation, service codes, passwords, system software including firmware, packaging and all additional costs, but without VAT and are considered fixed prices.
5.2. Payment is usually made 14 days after receipt of the invoice and acceptance of the goods with a 2% discount or 30 days net.
5.3. In the event of defects, the customer is entitled to withhold payment in full until the defect has been completely resolved and the period for calculating the cash discount only begins with a defect-free service.
5.4. Payment can be made by bank transfer or telebanking at the customer’s option. For a timely payment, it is sufficient to arrange it on the due date.
5.5. Unless otherwise contractually agreed, all prices include DDU Pottendorf (unload) (INCOTERMS) including taxes, fees and duties.
6. Terms of delivery | shipping | packaging:
6.1. Unless otherwise specified in the order, the delivery / service is free of charges and costs and at the risk of the contractor to the delivery address specified by the client (freight-free in Germany and if cross-border, DDP according to INCOTERMS in the latest version).
6.2. In the case of direct deliveries to the client’s customer, delivery is at the contractor’s expense and risk; Cash on delivery shipments cannot be accepted. Insofar as the customer accepts cash on delivery consignments in exceptional cases, he is also entitled to deduct the cash on delivery fee from the price agreed in the current or other business relationships with the contractor.
6.3. The delivery must be accompanied by a delivery note with all the order data, such as the order number, part number, exact description of the goods, order position and, in the case of deliveries from other EU countries, customs and goods number, etc..
6.4. The contractor is obliged, with the care of a prudent businessman, to safeguard all interests of the customer and, if necessary, to immediately place claims for loss, reduction or damage to the goods and the like with the carrier or to make these claims immediately upon request of the customer – without prejudice to the liability of the contractor to relinquish the former.
6.5. The agreed price includes the cost of packaging. If damage is caused by improper packaging, the contractor is responsible for this. The contractor has to pack the order item commercially and appropriately at his own expense.
6.6. The contractor guarantees the client that the packaging used, unless the contractor picks it up in the following sense, can be disposed of as harmless residual or domestic waste and that the packaging materials used are not special waste. In any case, the contractor is obliged to collect the packaging used, whatever its nature, from the customer or at another delivery address that differs from the company headquarters of the customer and to dispose of it properly.
6.6. The contractor guarantees the client that the packaging used, unless the contractor picks it up in the following sense, can be disposed of as harmless residual or domestic waste and that the packaging materials used are not special waste. In any case, the contractor is obliged to collect the packaging used, whatever its nature, from the customer or at another delivery address that differs from the company headquarters of the customer and to dispose of it properly.
7. Partial deliveries | Documentation:
7.1. Partial deliveries are only permitted with an explicit agreement. As a result, the costing of the customer and the delivery period may not be exceeded.
7.2. In the case of functionally related components, only a total delivery is permitted even without a separate contractual agreement or without reference to this in the contract, even if the contractor’s general terms and conditions are different or contrary, or if there is a different reconfirmation in the order confirmation or in other correspondence. Notes on delivery notes and invoices that expressly declare a partial delivery to be permissible are considered irrelevant.
7.3. The customer is entitled to refuse to accept partial deliveries or, if he chooses, to carry out the proper and appropriate storage of the partial delivery in the event of an exceptional acceptance, if necessary at the expense of the contractor. It is stated that even in the event that a partial delivery is expressly accepted on the part of the client, no general rule for the future can be derived from this, and in particular no express or tacit consent can be seen in this that the client will accept partial deliveries in the future ready.
7.4. The client is entitled to pass on the technical documents of the contractor or his subcontractors and suppliers to the customer or end customer to the extent necessary.
8. Accounting | Proof of achievement:
8.1. The account must be rendered in duplicate and contain the following information: The order number and all other order and delivery data as well as the ARA license number and the VAT identification number must be sent to the customer’s company headquarters.
8.2. The invoice must contain the bank codes required for the free or low-cost transfer, in any case the “BIC” and the “IBAN”.
8.3. If the invoice amount is variable, i.e. depending on the actual scope of delivery or containing work and assembly services, the corresponding supporting documents (time records, delivery notes or material notes etc.) must be included in original form.
8.4. Invoices that cannot meet the above provisions are deemed not to have been placed even without a return with the note “unbooked return” and do not trigger a due date.
9. Delay in delivery and performance | Contractual penalty | Withdrawal from contract:
9.1. Unless otherwise agreed, agreed dates are fixed dates.
9.2. In the event of delay, the client is entitled – regardless of the obligation to fulfill the contract – to a penalty, which is independent of the fault of the contractor and proof of damage and is not subject to the judicial right of moderation, in the amount of 0.5% of the total order value per calendar day started up to a maximum of 10% of the total order value.
9.3. In the event that the contractor cancels the contract for which the contractor is responsible, the customer is entitled to claim 10% of the total order value as a penalty, irrespective of the assertion of any further damage.
9.4. If there is even a partial delay, which the contractor has not remedied within the reasonable grace period, the customer is entitled to withdraw from the contract in whole or in part.
9.5. If the client gains knowledge of the contract after the conclusion of the contract, be it already in the execution stage of the order, which questions the creditworthiness of the contractor and thus the delivery in and of itself or the timeliness of the delivery or the subsequent delivery or the fulfillment of warranty or if there are any obligations to compensate for damages or if the client is aware of a general poor economic situation, the contractor is entitled to withdraw from the contract in full in the event that the contract has not yet started to be fulfilled by the contractor or in the event that the contract has already been partially fulfilled by the contractor, to withdraw from the remaining part of the contract that has not yet been performed, whereby the client is entitled in this case to offsett any counterclaims by the contractor, claims for damages etc. that may have arisen due to the need to withdraw from the contract, including those that have already occurred.
9.6. In the event of insolvency proceedings on the part of the contractor or if the ownership structure changes, the client is in any case entitled to withdraw from the contract in whole or in part. The contractor is obliged to immediately inform the client of such circumstances.
10. Takeover | Guarantee:
10.1. The deliveries and services of the contractor must comply with the general and special laws and regulations applicable in Austria or the European Union and the general rules of technology and standards. In particular, the latest technical version must always be delivered.
10.2. The contractor provides for all deliveries and / or services for a period of three years – in the case of longer statutory or contractual warranty or guarantee periods for this period – the full and unrestricted guarantee for the orderly execution and freedom from defects. He guarantees compliance with both the normally required and guaranteed properties as well as all applicable legal standards and provisions of this contract. Furthermore, he guarantees that the design, construction, practicality and manufacturing technology of the order item correspond to the state of the art, that only material of first-class and suitable quality has been used and that the order item is suitable for the intended purpose.
10.3. The guarantee period begins with the successful acceptance of the order item by the customer / end customer of the client or – in the case of use in the customer’s works – on the occasion of the first use of the order item and transfer of all documentation to the client. However, the guarantee period ends at the latest after four years from delivery (= handover of the order item to the agreed delivery address) and from handover of all items belonging to the delivery, including the necessary test certificates, descriptions, operating instructions and the like to the customer. After the elimination of complaints, the guarantee period for the entire delivery item begins anew.
10.4. If there is a dispute between the parties as to whether there is a guarantee case, the contractor undertakes a remedy of defects until the question of whether there is a guarantee case to be resolved – at least temporarily – at his own expense.
10.5. Payments by the customer do not constitute a waiver of the notice of defects or other claims of any kind. In the event of a notice of defect or complaint, the agreed price can be retained.
10.6. The client has the right to choose between price reduction, improvement, exchange and (in the case of minor defects) complete or partial withdrawal from the contract.
10.7. Any improvement or replacement is to be conducted at the risk and expense of the contractor immediately, but not later than 8 days from the customer’s notice of defects at the customer’s company headquarters or business premises or at the customer’s storage or installation location (insofar as this is has been announced to the contractor when signing the contract).
10.8. All costs incurred in remedying the defect (e.g. travel, assembly and dismantling costs, etc.) are to be borne by the contractor.
10.9. In the event of imminent danger, the client is entitled to remedy or have defects remedied at the contractor’s expense without setting this grace period, without this affecting the client’s claims in any way.
10.10 In the case of software or documentation services, the contractor assumes an unrestricted guarantee for the correctness and completeness.
11. Subsequent delivery guarantee:
The contractor further guarantees the subsequent deliverability of the delivered goods, in particular hardware components, spare parts and wearing parts, for a period of 7 years from the time the service is delivered fully.
12. Training | Documentation | Default specifications:
12.1. When technical equipment and devices are delivered for the first time, training must be provided free of charge, unless otherwise contractually agreed.
12.2. For deliveries of systems and equipment that are to be assembled by a third party or by the customer, the necessary assembly plans (including all connections, any structural necessities or the like), data sheets, installation instructions, processing instructions, storage, operating and maintenance instructions, spare and wear parts lists, CE declarations, or notes on special features of the order item have to be included, as well as a the necessary labels and enclosing operating instructions and operating instructions in duplicate have to be attached.
12.3. The contractor must prepare all documentation in the language specified in the order text. If no language is included in the order text, the contractor is asked to clarify the question with the client about the documentation language. In the event that a special documentation language is expressly not requested by the client, all documentation must be provided in the required number and in German.
12.4. All specifications on which the order is based, such as aids, drawings, standard sheets, print templates, gauges, models, tools, molds, samples, must be returned to the customer in perfect condition at the latest after the contract has been processed.
13. Damages | Product liability:
13.1. The contractor is liable according to the legal provisions.
13.2. In the event that the delivered order item has defects and the client is therefore charged, the contractor will indemnify the client.
13.3. In the event of product liability, the contractor undertakes to satisfy all the customer’s claims for compensation, to meet all costs and expenses incurred, and to indemnify and hold the customer harmless with respect to all third-party product liability claims and to notify the respective manufacturer, importer, suppliers and pre-suppliers immediately after a first request.
13.4. As part of product liability, the contractor is also liable for any damage to property and pecuniary damage to the customer.
14. Copyright:
14.1. The agreed price also includes compensation for intellectual property rights in the documentation created, insofar as the documentation is created separately for the individual order. The client acquires related patent, utility model, trademark and design protection or copyrights including copyrights for free use and (repeated) resale.
14.2. In the event of infringement of third party property rights in connection with the ordered delivery / service, the contractor must indemnify and hold the client harmless.
15. Retention of ownership | Assignment Ban | Offsetting transfer | Transfer of ownership | Fulfillment:
15.1. All deliveries to the client are free of reservation of title and third party rights. Such reservations are ineffective even without the client’s express objection.
15.2. Claims from deliveries made to the client may only be ceded with the client’s express prior written consent.
15.3. The client is entitled to offset counterclaims, including those that are not due. The contractor is not entitled to offset. The contractor is not entitled to offset (to compensate or to offset) claims for whatever legal reason with claims of the contractor. This also applies in the event that the contractor’s claim is legally or actually related to the order in question, as long as the justification for the counterclaim has not been determined by the court.
15.4. The contractor may not transfer his contractual rights and obligations to third parties without the express consent of the client.
16. Confidentiality | Non-competition clause:
16.1. The contractor is obliged to keep all information given in connection with the order or otherwise known to him secret, not just business and trade secrets. He has to expand this obligation on his employees and the companies he has commissioned. Any passing on of information to third parties, as well as the production of duplicates of documents related to the order, requires the express written consent of the client. In the event of contravention, the client is also entitled to withdraw from the contract in whole or in part.
16.2. Confidential information, which is subject to confidentiality, includes not only all information, planning and manufacturing documents of any kind made available to the contractor by the client, but in particular also includes all data relating to the client’s business partners and customers. When performing the service, the contractor is particularly required to treat all data and facts that are known to him by customers and business partners of the client confidentially and is not permitted to use, store or pass on this data outside of the contractor’s business. It is also not permitted to archive this data unless it is absolutely necessary and agreed for follow-up orders. It makes no difference whether it is analog or digital data.
16.3. This confidentiality obligation extends not only to the duration of the business relationship between the client and the contractor, but also beyond this business relationship. Sensitive data within the meaning of this point must be treated confidentially at all times.
16.4. In the event of contravention of the provisions of this point, the client is entitled to bring all related damage, whether through loss of image, loss of customers or customer satisfaction to the contractor in the sense of a contractual penalty, which should not be subject to the judge’s right to moderate. Insofar as damage cannot be quantified without further payment, the customer is entitled to charge the average annual turnover of the last 3 calendar years preceding the incident as a non-moderated penalty if a customer is lost, optionally also 10% of the gross turnover of the customer in the Average size of the last 3 calendar years according to the client’s balance sheet.
16.5. The contractor is subject to a strict prohibition of competition, which cannot be softened without the express written consent of the client, in such a way that the contractor is not entitled to use the information made available to him – be it that it was received during the offer stage or in the course of order processing – for its own purposes for post-production or draw inspiration from such products of the client and use them for own purposes of any kind.
16.6. In particular, the contractor is prohibited from using the products, components, software or all documentation based on the order and plans and specifications of the customer for any purpose of his own.
16.7. The non-competition clause and the confidentiality clause are subject not only to the confidentiality of the data, but to any use of the same, be it for marketing purposes. Without the consent of the client, the contractor is not authorized to use the fact that the order was placed – be it only for marketing purposes or to increase the company’s image or goodwill.
17. Place of fulfillment:
Unless otherwise contractually agreed, the place of performance is 2486 Pottendorf, the registered office of the contractor’s company.
18. Choice of law:
For all orders of the contractor – unless otherwise contractually agreed – only Austrian law is applicable. The United Nations convention on contracts for the international sale of goods and the referral of Austrian international private law to other legal systems are excluded.
19. Place of jurisdiction:
The agreed exclusive place of jurisdiction – unless otherwise contractually agreed – for all disputes arising from contracts between the contractor and the client resulting from contracts or the termination of contracts is the locally and factually competent court for the registered office of the contractor’s company.
20. General terms:
20.1. Written inquiries, communications of any kind are to be directed to the respective project manager, unless the contractor has expressly announced such, to the management of the contractor. The contractor’s employees on site are not entitled to receive such written communications with the effect that they are deemed to have been received by the contractor.
20.2. In addition to the above-mentioned forms of transmission by post, fax and email, the transmission via EDI or similar electronic transaction standards is also to be regarded as written.
20.3. Should a clause of this contract be or become ineffective or should the contract be incomplete, the remaining content of the contract is not affected. The ineffective provision is to be replaced by a provision that economically comes closest to the meaning and purpose of the ineffective provision. Any contractual gaps or gaps in the agreement are to be filled in the same way.