General Terms and Conditions
Status as of July 2014
1.1 As a general rule, the present General Terms and Conditions shall be designed for legal transactions between companies. In the event that they are also used as a basis for any legal transactions with consumers within the meaning of the Austrian Consumer Protection Act in exceptional cases, they shall apply only to the extent that they do not conflict with any mandatory provisions.
1.2 The present General Terms and Conditions shall apply as a framework agreement to any and all legal transactions and legal relationships between the principal and the contractor, and not only, for example, to the first legal transaction. The application of the General Terms and Conditions, including to all additional and follow-up contracts as well as for any further transactions, shall be explicitly agreed upon.
1.3 Any terms and conditions of purchase or any other terms and conditions of the principals shall not have any validity and shall herewith be explicitly objected to. The contractor shall expressly confirm that the contractor only intends to contract on the basis of the contractor’s General Terms and Conditions. In the event that, in exceptional cases, the application of the principals’ GTC is agreed upon in writing, the provisions of said GTC shall apply only to the extent that they do not conflict with the terms and conditions of the principal and those of the contractor, but shall continue to exist in parallel as far as this is possible.
1.4 The principal shall confirm that the principal had been provided with the opportunity to take note of the content of the General Terms and Conditions before the conclusion of the agreement and that the principal expressly agrees with their content.
1.5 Any modifications of and amendments to the present General Terms and Conditions shall require written form to become legally effective. Any deviation from this written form requirement shall likewise only be possible in writing. It shall be noted that any ancillary arrangements have not been made. In this respect, any actions performed on our part to ensure fulfilment of the agreement shall not be regarded as a consent to any such contractual terms and conditions that deviate from our GTC.
II. Conclusion of the Agreement
2.1 Any offers of the contractor shall be subject to change and non-binding.
2.2 Any such oral commitments, ancillary arrangements and the like that deviate from the present GTC or from any other of our written declarations of intent, in particular those made by sellers, deliverers, etc., shall not be binding for us. The content of the catalogues, price lists, leaflets, other company information materials, prospectuses, advertisements at trade fair booths, circular letters and advertising transmissions used by us, as well as any other information appearing in the media in relation to the services and products of the contractor shall be non-binding and shall not be part of the agreement, unless it is expressly stated in writing that they shall become part of the agreement.
2.3 As a general rule, any cost estimates of the contractor shall be deemed to be drawn up without any warranty in terms of completeness and correctness.
2.4 Any offers or orders of the principals shall be accepted by the contractor by means of a written order confirmation or by delivery of the object of purchase or by provision of the services. OR:
2.5 Any contract shall require an order confirmation to ensure that the agreement will be concluded. Any dispatch, handover, assembly or repair of or in relation to the goods or services ordered by the principal shall likewise effect the conclusion of an agreement.
3.1 In the event that any contract is placed without prior quotation or any such services are rendered that had not been included in the contract documentation, the contractor may assert such remuneration that is in line with the contractor’s price list or customary remuneration.
3.2 The contractor shall be entitled to demand a higher remuneration than the one agreed upon or the purchase price if the bases of calculation existing at the time the contract is placed, including, but not limited to, the raw material prices, the exchange rate or the personnel costs, change after the agreement is concluded.
3.3 Any and all prices and remunerations shall be deemed to be subject to the respective applicable statutory value added tax and to apply ex works. Any assembly, packaging, transportation, loading and dispatch costs as well as any customs duties and insurance costs shall be at the expense of the principal. Packaging shall be taken back only if this has been expressly agreed upon. By arrangement, however, such services shall be rendered and/or organised by us against separate payment. In doing so, the costs actually incurred for transport and/or service, together with a reasonable surcharge for overhead expenses, at least, however, the freight and cartage costs applicable or customary on the day of delivery for the selected mode of transport, shall be invoiced. Unless otherwise agreed upon, any assembly work shall be charged on the basis of the time spent, with a man-hour rate customary in the industry being deemed to be agreed upon.
3.4 The costs for any travel expenses, daily allowances and overnight accommodation costs shall be invoiced separately for any periodically chargeable remuneration. Any travel times shall be regarded as working time.
IV. Terms and Conditions of Payment, Default Interest, Reminder Fees and Collection Expenses
4.1 Unless otherwise agreed upon, half of the remuneration / purchase price shall become due at the time the order confirmation has been received, with the remainder being payable at the time of delivery or holding ready for collection free of both expenses and deductions.
4.2 Any payment by the principal shall be deemed to have been received as soon as the contractor can dispose of it. Any dedications of payments of the principal, for example on any transfer vouchers, shall not be binding.
4.3 Deduction of any cash discount without any special arrangement shall not be permitted.
4.4 In case of any default of payment, 12% default interest p.a. shall be agreed upon. At the contractor’s request, the contractor shall be compensated without undue delay for any useful and necessary costs caused by the default of payment, including, but not limited to, any expenses for reminders, collection attempts, storage costs and any judicial or extra-judicial lawyer’s fees, as the case may be.
4.5 The privileges agreed upon at the time the agreement is concluded, including, but not limited to, any cash discounts and price reductions, shall be granted only subject to the proviso that payment is effected both in good time and in full. In case of any delay, including with only one single partial payment, the contractor shall be entitled to pass to account any and all privileges retrospectively.
4.6 The assertion of any right of retention and the defence of not properly performed contract on the part of the principal in case of any alleged defect shall be excluded. Offsetting by the principal with any counterclaims or with any alleged entitlements to price reduction shall be permitted.
4.7 In the event that the principal comes into default with any payment obligation originating from the contractual relation or any other duty of payment, the contractor shall be entitled, without prejudice to any other rights, to suspend the contractor’s performance obligation until the payment has been effected by the principal and/or to make use of a reasonable extension of the delivery period, to declare due and payable any and all outstanding claims from the present or from any other legal transaction(s) and, if need be, to re-collect, at the principal’s expense, any items delivered, without this releasing the principal from the principal’s performance obligation. Withdrawal from the agreement by the contractor by means of such actions shall be deemed to exist only such withdrawal has been explicitly declared.
4.8 In the event that the principal comes into default, including with only one single partial payment, the contractor shall be entitled to declare the remuneration agreed upon or the purchase price due and payable without undue delay as well as to carry out the execution of the contract only against payment in advance.
4.9 If any periodically chargeable remuneration, for example for any general or maintenance services, is agreed upon, such remuneration shall become due and payable once a year, at the beginning of the calendar year. In the event that the agreement starts or ends during a given calendar year, such remuneration shall be owed on a pro rata basis. Such remuneration shall be index-adjusted in accordance with the Austrian Consumer Price Index 2005 (CPI 2005), with the month in which the service or maintenance agreement had been concluded being used as a starting basis. In the event that the CPI 2005 is no longer published, it shall be replaced by such CPI that succeeds or comes as close as possible to the present one. In addition, the contractor shall be entitled to adapt any periodically chargeable remuneration for the reasons specified in clause II.2.
V. Withdrawal From the Agreement, Premature Dissolution of the Agreement and Error
5.1 In addition to the general statutory provisions, the contractor shall also be entitled to withdraw from the agreement in case of any default of acceptance or any other important reasons, including, in particular, but not limited to, any initiation of insolvency proceedings in relation to the assets of any contracting partner or any rejection of a petition for bankruptcy for lack of cost-covering assets. In the event of withdrawal, we shall have the option, if the customer is at fault, to claim liquidated damages in the amount of 25% of the gross invoice amount or compensation for the damage actually caused.
5.2 In case of any default of payment on the part of the customer, we shall be released from any further performance and delivery obligations and shall be entitled to retain any deliveries or services not outstanding and to demand payments in advance and/or guarantees or, after granting of a reasonable grace period, as the case may be, to withdraw from the agreement.
5.3 In the event that the customer withdraws from the agreement without being entitled to do so, or if the customer requires its cancellation without justification, we shall have the option to insist on the fulfilment of the agreement or to agree with the cancellation of the agreement. In the latter case, the customer shall be obligated, at our option, to pay liquidated damages in the amount of 25% of the gross invoice amount or compensation for the damage actually incurred.
5.4 In the event that any deliver/service cannot be carried out / rendered by the principal for any reasons attributable to the principal or if the principal violates any legal or contractual obligation vis-à-vis the contractor, the contractor shall be entitled to withdraw from the agreement. In this case, the principal shall compensate the contractor for any and all disadvantages suffered as a consequence thereof (including any loss of profit).
5.5 The principal shall waive any challenging/adaptation of the present agreement on account of an error.
VI. Delivery and Performance Deadlines
6.1 Any delivery/performance deadlines shall be non-binding, unless they had been explicitly agreed upon as such in writing in the order confirmation or in writing in the individual agreement.
6.2 In the event that any modification of or amendment to the agreement takes place for any reasons whatsoever after the contract has been placed, the delivery/performance deadline shall be extended by a reasonable period of time, which shall be defined by the contractor.
6.3 Unless otherwise agreed upon, the delivery deadline shall commence at the earliest with the latest of the following points in time:
a) date of the order confirmation;
b) date of fulfilment of all technical, commercial and other conditions required to be met by the principal;
c) date on which the contractor receives any down payment agreed upon or any collateral security.
6.4 In the event that the contractor is prevented from fulfilling the contractor’s obligations due to the occurrence of any
circumstances which had been unforeseeable or are not attributable to the contractor, including, but not limited to, any operational disruptions, sovereign measures and interventions, energy supply difficulties, loss of any component supplier who is difficult to replace, strike, obstruction of traffic routes, delay during customs clearance or any event of force majeure, the delivery/performance deadline shall be extended to a reasonable extent. The question as to whether such circumstances occurred with the contractor itself or with any of the contractor’s suppliers or subcontractors shall be irrelevant in this context.
6.5 In the event that the fulfilment of the agreement becomes impossible due to any reasons not attributable to the contractor, the contractor shall be released from the contractor’s contractual obligations.
6.6 The contractor shall be entitled to carry out and pass to account partial or advance deliveries. The respective portions of the purchase price shall become due and payable upon delivery or holding ready for collection. In the event that delivery on call has been agreed upon, the object of performance/delivery shall be deemed to have been called off six months after the date of order at the latest.
VII. Assumption of Risk and Dispatch
7.1 Any risk shall pass over to the principal as soon as the contractor holds the object of purchase / work ready for collection at the plant or in the warehouse, irrespective of whether or not the items are handed over by the contractor to any freight forwarder or carrier. Dispatch, loading and unloading as well as transport shall always take place at the principal’s risk (EXW in accordance with the Incoterms 2000).
7.2 The principal shall approve any appropriate mode of dispatch. Any transport insurance shall be taken out only on the basis of a written order of the principal. The costs thereof shall be borne by the principal.
7.3 In the event that any credit limit agreed upon with the contractor is exceeded or if the principal comes into default, including with only one single partial payment, the contractor shall be entitled to have the packaging and dispatch costs as well as the purchase price charged to the principal through cash on delivery at the time of dispatch.
7.4 The place of fulfilment shall be the place where the plant of the contractor is located.
VIII. Retention of Title and Right of Retention
8.1 Any and all goods and products shall remain the ownership of the contractor until payment in full has been effected by the principal, including in the case that the objects to be delivered or manufactured will be further alienated, modified, handled or processed or blended.
The contractor shall acquire co-ownership to the new item created in this manner at the ratio between the value of the goods and work delivered by the contractor and the value of the other goods processed at the time of processing or handling.
8.2 In the event that the item subject to retention of title is claimed back and/or taken back by the contractor, withdrawal from the agreement shall be deemed to exist only if such
withdrawal is explicitly declared in writing. If any goods are taken back, the contractor shall be entitled, notwithstanding any further claims, to pass to account any transportation and manipulation expenses incurred.
8.3 Until all accounts receivable of the contractor have been paid in full, the object of performance/purchase must be neither pledged nor transferred as a collateral security or encumbered in any other manner whatsoever with any rights of third parties. In case of any attachment or assertion of any other claims, the principal shall be obliged to point out to the right of ownership of the contractor and to notify the contractor thereof without undue delay.
8.4 The principal shall assign to the contractor by way of payment all of the claims and rights to which the principal is entitled as a result of the further alienation, processing, blending or other utilisation of the goods and products. Until the remuneration or purchase price has been paid in full, the principal shall point out to such assignment in the principal’s books and on the principal’s invoices and shall point the principal’s obligors to such assignment. Upon request, the principal shall make available to the contractor any and all documents and information required to assert the claims and entitlements assigned.
8.5 To collateralise the contractor’s claims and to collateralise any claims from any other legal transactions, the contractor shall have the right to retain the products and goods until any and all accounts receivable outstanding from the business relationship have been settled.
8.6 The principal shall bear the full risk for the goods subject to retention of title, in particular for the risk of destruction, loss or deterioration.
IX. Obligations of the Principal
9.1 In case of any assemblies being carried out by the contractor, the principal shall be obliged to ensure that the work can be started immediately after the arrival of the assembly staff of the contractor.
9.2 The principal shall be liable for ensuring that the necessary technical conditions for the work to be produced or for the object of purchase are met and for ensuring that the technical equipment, including, but not limited to, any supply lines, cabling, networks and the like, are in a technically perfect condition ready for operation and are compatible with the works to be produced by the contractor or with the objects of purchase. The contractor shall be entitled, but shall not be obliged, to inspect such equipment against separate remuneration.
9.3 Any obligation to inspect, to warn or to give information with regard to any documents made available, any information communicated or any instructions given by the principal, as the case may be, shall not exist and any liability of the contractor in this respect shall be excluded.
9.4 The contract shall be placed regardless of any necessary official authorisations and approvals, as the case may be, which shall be obtained by the principal.
9.5 The principal shall not be entitled to assign any claims and rights from the contractual relationship without the written consent of the contractor.
9.6 The dimensioning of the potential equalisation, lightning protection and earthing at the organic feeding system, crusher, cable trays, pumps, etc., as well as the dimensioning of the supply line and protection system shall be effected based on the personal responsibility of the executing electronics firm and shall not be the responsibility of the company BioG.
The power supply line to the BioG electrical distributor shall be provided on the part of the building site.
9.7 The communication connection to a subordinate control system and an Internet connection for any remote maintenance purposes shall be made available by the customer at the time of commissioning and during the guarantee period to ensure that the parameterisation can be implemented.
10.1 The warranty period shall be limited to twelve months and shall commence with the date of transfer of risk within the meaning of the present GTC. The same shall also apply to any such objects of delivery and performance that will be tightly connected with a building or land and property.
10.2 Any warranty shall be excluded if the technical equipment, including, but not limited to, any supply lines, cabling, networks and the like, are not in a technically perfect condition ready for operation and are not compatible with the works to be produced by the contractor or with the objects of purchase. Furthermore, any warranty based on the following reasons shall be excluded:
10.3 No warranty claims shall exist if any operation or installation
requirements applicable by way of law or established by the contractor are not complied with, if the object of purchase had been created on the basis of the specifications of the principal and the defect is attributable to these specifications and/or drawings, in the event of any faulty assembly and/or commissioning by the principal or by any third parties, in any case of natural wear and tear, in case of any transport damage, in the event of any improper storage, in case of any operating conditions interfering proper operation (for ex. insufficient power supply), in any event of chemical, electrochemical or electrical influences, in case of any necessary maintenance work not been carried out or in the event of any poor servicing.
10.4 Any notifications of defects and complaints of any kind whatsoever shall be notified in writing without undue delay specifying the possible causes; otherwise, any claims shall be deemed forfeited. Any notifications of defects and complaints made in oral form, by phone or not without undue delay shall not be taken into account. Following the implementation of any acceptance agreed upon, notification of any defects identified at the time of acceptance shall be excluded.
10.5 Any notifications of defects and complaints, where applicable, shall be specified providing a description, as precise as possible, of the defect and/or of the complaint. Any goods that have become the object of a complaint shall be handed over by the principal to the contractor to the extent that this is feasible.
10.6 The contractor shall be entitled to carry out or have carried out any investigation that the contractor considers to be necessary, even if such investigation results in the goods or work pieces becoming unusable. In the event that this
investigation shows that the contractor is not responsible for any errors, the principal shall bear the costs for this inspection for a reasonable remuneration.
10.7 In the event that the objects of performance are manufactured on the basis of any information, drawings, plans, models or any other specifications of the principal, the contractor shall guarantee only for the execution in compliance with the terms and conditions.
10.8 In the event that the principal makes any modifications to the object of purchase handed over or to the works without the prior written consent of the contractor, any warranty obligation of the contractor, where applicable, shall cease to apply.
10.9 If any primary warranty claims are asserted, the contractor shall have the option to choose between replacement delivery and subsequent improvement. For any secondary warranty claims, the contractor shall be entitled, at the contractor’s option, to avert any claim for redhibitory action on the basis of a claim to reduction in price, unless the defect is substantial and cannot be rectified.
10.10 In the first six months following the date of handover of the item / work, the principal shall provide evidence of the fact that the defect had already been existing at the time of handover.
10.11 Any and all costs incurred in connection with the remediation of defects, including, but not limited to, any transport as well as any travel costs, shall be at the principal’s expense. At the contractor’s request, the principal shall make available the necessary labour forces free of charge.
XI. Liability and Product Liability
11.1 The contractor shall be liable only for any damage caused by intent or by extremely gross negligence. The principal shall provide evidence of the fault of the contractor.
11.2 The liability for any indirect damage, consequential damage, loss of profit, property damage, damage caused by interruption of operations, loss of data, loss of interest as well as any damage caused by any claims of third parties vis-à-vis the principal shall likewise be excluded.
11.3 In any case, any liability of the contractor, where applicable, shall be limited in its total amount up to the amount of the remuneration agreed upon or of the purchase price for the respective contract. Any farther-reaching liability of the contractor shall be expressly excluded. In the event that the total damage exceeds the upper limit, the claims for damages of individual damaged parties shall be reduced on a pro rata basis.
11.4 Any claims for compensation for damages shall be asserted in court within a period of six months in any case; otherwise, they shall be deemed forfeited.
11.5 As compensation for damages, the principal may initially only claim improvement or replacement of the item / work. Only if both is impossible or will involve a disproportionate effort for the principal, the principal may claim compensation in money without undue delay.
11.6 In case of any non-compliance with any terms and conditions for assembly, commissioning or use, where applicable, or with the terms and conditions of the official approvals, any liability shall, as a general rule, be excluded. The principal shall be obligated to ensure that any operating
instructions for the goods and/or works delivered will be complied with by all users. In particular, the principal shall train and brief both the staff members of the principal and any other individuals who come into contact with the goods and/or work delivered accordingly.
11.7 The obligation to pay compensation for any material property damage resulting from the Austrian Product Liability Act as well as for any product liability claims which may be derived from any other provisions shall be excluded to the maximum extent permissible by applicable law. The orderer shall be obliged to transfer the exclusion of liability for any product liability claims to any of the orderer’s contracting partners, where applicable. Any recourse of the principal vis-à-vis the contractor from the assertion of any claim in accordance with the Austrian Product Liability Act shall be excluded. The principal shall take out insurance with sufficient cover for any product liability claims and shall indemnify and hold the contractor harmless in this respect. At the contractor’s request, the transferability of the insurance shall be restricted for the benefit of the contractor.
In case of any justified complaint, except for the cases of rescission, the customer shall not be entitled to retain the entire gross invoice amount, but only a reasonable portion of said amount.
XIII. Industrial Property Rights
13.1 The principal shall be liable for ensuring that any construction details, drawings, models or any other specifications handed over will not encroach on any property rights of third parties. In any case of violation of any property rights, where applicable, the principal shall indemnify and hold the contractor harmless.
13.2 Any software, implementation documents, including, but not limited to, any plans, sketches and any other technical documents, as well as any samples, catalogues, leaflets, illustrations and the like, shall remain the intellectual property of the contractor and shall benefit from copyright protection. They shall be reserved to the contractor after the contract has been executed. Any reproduction, dissemination, imitation, processing or utilisation and the like not explicitly granted beforehand shall not be permitted.
14.1 In the event that the object of performance/purchase also includes any software components or computer programmes, the contractor shall grant the principal a non-transferable and non-exclusive right of use at the place of installations agreed upon with regard to such components and/or programmes in compliance with the contractual terms and conditions.
14.2 The principal shall not be entitled to reproduce or alter the software, to make it accessible to any third parties or to use it for any purposes other than the ones explicitly agreed upon without the prior written consent of the contractor; otherwise, any claims shall be excluded. This shall apply, in particular, to the source code.
14.3 Any warranty with regard to the software shall exist only for compliance of the software with the specifications agreed upon at the time the agreement is concluded and to the extent that the software is used in accordance with the installation requirements and is in compliance with the respective applicable terms and conditions of use. The contractor shall not provide any warranty for ensuring that the software is in a perfect condition and will work without any interruptions or errors. The occurrence of any errors cannot be excluded.
14.4 The selection and specification of the software offered by the contractor shall be made by the principal, who shall be responsible for ensuring that it is compatible with the technical conditions on site. The principal shall be responsible for the use of the software and the results achieved in this respect.
14.5 For any software to be produced on an individual basis, the performance features, specific functions, hardware and software prerequisites, installation requirements, terms and conditions of use and the operation shall exclusively be governed by the functional specification document to be agreed upon in writing between the parties to the agreement. The information required for the production of the individual software shall be made available by the principal before the agreement is concluded.
XV. Choice of Law, Place of Jurisdiction
15.1 The place of jurisdiction for all disputes resulting from the contractual relationship or from any future agreements between the contractor and the principal shall be the court having local jurisdiction for the registered office of the contractor. The contractor shall be entitled to also file actions at the general place of jurisdiction of the principal.
15.2 The parties to the agreement shall agree on the application and applicability of Austrian domestic law. The application of the UN Sales Law and of private international law shall be expressly excluded.
15.3 The contract language shall be the German language.
15.4 Any modifications of the name, corporate name, address, legal form or any other relevant information of the principal shall be communicated by the principal to the contractor in writing without undue delay.
XVI. Severability Clause
In the event that individual provisions of the present General Terms and Conditions are or become ineffective or unenforceable either in whole or in part, this shall not affect the validity of the remaining provisions. Any ineffective provisions shall be deemed to be replaced by such provision customary in the industry that comes as close as possible to the ineffective provision.