1. Scope of application
The contractor operates only on the basis of these terms and conditions; this also applies to contract extensions and additional orders. Conditions or other terms and conditions (such as conditions of purchase) of the client are without effect and therefore excluded as regards the legal transaction and the entire business relationship. Changes and additional agreements must be exclusively in writing; verbal agreements or other agreements are not valid. The requirement of written agreement therefore cannot be amended by verbal agreement. By accepting the services that he has ordered and provided by the contractor, the client is held to agree to these terms; in this case, silence on the part of the client will be taken as consent to these terms and conditions.
2. Cost estimates
Estimates are charged for; the sum paid will be credited if an order is placed on the basis of the estimate. Cost estimates are non-binding; this also applies in the case of fee-based cost estimates. All technical documents, including service specifications, remain the intellectual property of the contractor and may not be handed over to third parties without the contractor's express consent.
Offers made by the contractor are subject to change and do not commit him to supply. Acceptance is only possible for the entire package.
Orders made by the client or by his representatives known to us from an ongoing business relationship are binding. They become legally binding on the client by our sending an order confirmation or invoice for the scope specified therein. The contractor is not obliged to accept an order.
The prices are quoted in Euros excluding VAT and unless otherwise agreed are ex-works, excluding packaging, loading, and transportation costs. Disposal of remaining packaging is to be done in accordance with the applicable Austrian Recycling Provisions, whereby the client is to bear the costs of the return transport of packaging materials.
Should there be changes, between conclusion of the contract and performance, in
- Labour costs and / or
- Purchasing costs for the materials used
whether as a result of legislation, regulation, collective agreement, articles of association, official recommendation, other official measures or due to changes in world market prices, the corresponding prices shall be increased or reduced accordingly, unless the period between order placement and performance execution is less than two months. Our scheduled workand unit prices do not include costs for the disposal of rubble, construction waste, hazardous waste, and the like. We will arrange for their disposal on behalf of the client in accordance with applicable regulations at reasonable cost to the client. Services required by the authorities and electric utility companies such as fees, construction grants, meter fees, grid connection and site supervision are not included in the unit price and are invoiced separately. Unless otherwise agreed, prices for scheduled work are charged according to the current notice available in the contractor's business premises. Travelling times will be charged as working hours. The costs of journeys by car are included in the travelling time.
6. Payment conditions
Unless other payment conditions have been agreed, 30% of the order value is due before performance, 30% on completion of a significant phase of construction (e.g.: basic installation), and another 30% after the completion of work. The balance shall be paid as part of the final invoice after successful commissioning and handover to the client. Unless otherwise agreed, net cash payment is to be made promptly. Discounts are valid only by prior agreement; payments shall be credited against the oldest outstanding debt from previous goods and services supplied. This also applies to interest, reminder and collection costs. Deductions for unjustified discounts may be claimed by the contractor. Payments shall be made only directly to the contractor. Payments to third parties without explicit written agreement to this effect between the parties are not permitted and do not exempt the client from payment of the debt. In the event of construction delays, the contractor is entitled to issue additional partial invoices. If, after conclusion of the contract, the contractor becomes aware of the deterioration of the economic situation of the client, such as inability to pay, the contractor is entitled to immediately invoice all services provided and demand payment. The same applies in case of late payment for previous goods and services supplied. The continuation of the work may be made dependent on the provision of appropriate securities by the client. The client is not entitled to offset his own claims against claims made by the contractor. In the case of late payment, the client is obliged to reimburse all reminder and collection expenses. In case of late payment on the part of the client, the contractor is entitled to charge interest at the rate of 12% per annum. This does not affect claims for compensation of higher interest rates.
7. Reservation of title
All delivered and installed goods remain the exclusive property of the contractor until full payment of the purchase price plus interest, reminder and other collection costs. In payment by means of bills of exchange, reservation of proprietary rights is considered to be agreed until the bill of exchange is actually redeemed. In the event of breach of contract by the client, in particular payment default, the contractor is entitled to take the goods back. In the event of the processing of the reserved goods to become a new product or installation, the contractor remains the proprietor whatever the state of the processing. If processed, combined or inseparably integrated with material belonging to other proprietors, the contractor acquires pro rata joint ownership of the whole product. The client immediately passes his claim from the transfer of the goods to third persons to the contractor and authorises him to collect the debt. For the duration of retention of title, the client may not pledge the retained goods, use them as security or sell them unless an alternative written agreement is expressly made. Should the object of the contract - or parts thereof - be purchased for resale, or the goods are otherwise passed on to third parties on the basis of whatever title, the client undertakes to transfer the obligations in this contract, in particular those referring to retention of title, to the other contracting party. In the event of default, if requested by the contractor, the client undertakes to return the purchased goods immediately. The contractor may also make use of the agreed retention of title if the assets of the client are subject to insolvency proceedings, if the contractor becomes aware of the deterioration of the economic situation of the client, or if the client gets into payment difficulties (including interest, reminder or collection costs) with other goods or services supplied by the contractor. In the event that the contractor makes use of his retention of title, a fee in the amount of at least 30% of the invoice total is due for use, wear and handling. After return of the goods, the client undertakes to reimburse the cost of necessary repairs, or to make good the loss of value caused by installation or use. The client undertakes to ensure that goods already connected, assembled or otherwise in the meantime related to a structure (even a fixed one), even if they have become part of other devices, be dismantled immediately at the client's expense on behalf of the contractor and returned to the contractor. This commitment is accepted by the client even in the event that goods are transferred to third parties on the basis of whatever title.
8. Goods supplied by client
If equipment or other materials are supplied by the client, the contractor is entitled to offset 20% of his sales prices against these or similar goods. Such equipment and other materials supplied by client are not covered by warranties. In such cases, the contractor shall be entitled to charge the client expenses for damage assessment of equipment supplied by the client, or expenses for reconditioning system components damaged by faulty devices supplied by the client. In the event of theft, loss or destruction of the goods supplied by the client, the contractor is not obliged to compensate for the loss sustained. Possible compensation for work for already assembled units shall still be due.
9. Liability and compensation
The contractor is liable only for damages that were inflicted by intentional or grossly negligent conduct by him or his staff and only for the fault incurred itself. Other liabilities such as lost profits, loss of production, consequential damages and financial losses are basically excluded. Justified claims for damages shall be compensated for on the basis of the actual value to a maximum of the value at the time.
During assembly and repair work, damage
- to existing cables and equipment as a result of circumstances difficult to recognize or material defects
- during chiselling work in deteriorated and loose masonry
- by opening distributor caps, flush-mounted socket covers, etc.
is possible. Such damage shall not be made good by the contractor. The required covering over of furnishings, flooring, doors and the installation of any necessary dust barriers is to be carried out by the client and is not included in the quoted price. A separate order for such services must be made by the client in good time. The client has been informed that the services ordered may give rise to dirt and dust. The contractor shall be liable for the work of his assembly staff or other vicarious agents only in the event of their gross negligence and only in regard to the contractually stipulated services, but not for further services. The same applies to services that the assembly staff are commissioned to do directly by the client. The cost of operations by the police or fire department due to faulty triggering of automatic alarm systems shall only be reimbursed by the contractor in cases of gross negligence.
10. Transfer of risk
The delivery of the goods ordered is uninsured and at the client's own expense and risk, regardless of whether the transport is performed by the contractor or third parties. In the case of shipment, the risk is transferred upon delivery of the goods to the carrier or the shipper, or in the case of transportation by the contractor, to his driver. If shipment is not performed by the contractor, the transfer of risk is effected no later than when the shipment is made ready by the client. The client is to ensure proper securing of the construction site area and especially to close off applicable entrances to technical centres, low-voltage rooms, control rooms. Goods already delivered by the contractor or his suppliers and possibly already installed are to be adequately insured by the client against theft, vandalism and destruction. Losses and damages shall be borne by the client. If goods are handed over by the contractor by means of a Delivery Note to the client or to one of his representatives or to a subcontractor authorised by the client, the transfer of risk is therefore considered to have been effected.
11. Performance execution
The contractor is obliged to execute performance at the earliest once all technical and contractual details have been clarified and the client has fulfilled his obligations and has arranged the architectural, technical and legal requirements for execution. Permits required from third parties, in particular the authorities or utility companies, are to be produced by the client. The contractor is entitled to issue reports prescribed by legislation to the authorities. For the period of performance the client is to provide the contractor with suitable, lockable rooms free of charge for the use of personnel, tools, equipment and material. The power required for performance execution, including trials, is to be provided free of charge by the client. The client is to provide adequate illumination of the work and access areas. The contractor is entitled to reasonable remuneration for additional or changed services ordered by the client or his representatives which go beyond the scope of those ordered. If the basic order was issued on the basis of unit prices, the contractor is entitled to charge for subsequently commissioned services according to actual expenditure in the form of recorded scheduled work. If the nature of the job requires it to be carried out urgently or its execution is urgently requested by the client, the resulting necessary overtime and / or costs accruing due to speeding up material procurement shall be invoiced to the client. If, due to circumstances for which the contractor is not responsible, the safety of his employees on the construction site cannot be guaranteed, in particular according to the Employee Protection Act, he must inform the client immediately and is entitled to stop work immediately.
12. Performance deadlines, delivery dates
Delivery dates are non-binding. Exceeding the delivery date entitles the client to withdraw from the contract only in the case of a written promise of delivery by the contractor if the delivery period is exceeded by more than 30 days and subsequently a grace period of 90 days has expired without fulfilment by the contractor. Withdrawal must be made by registered letter and only permits the client to receive interest-free repayment of any possible payments made in advance, but not to receive damages. If the start of performance execution or the execution itself is delayed and the delay is not caused by circumstances which at least constitute negligence by the contractor, binding promised dates and deadlines shall be postponed accordingly. Resulting additional costs to the contractor (additional costs for disruptions and work stops) as well as idle time and downtime costs are to be borne by the client. Preliminary work by the client on site prior to execution must be completed on time so as not to impede or delay the contractor's work. Scheduling delays by other professionals as regards the construction schedule and resultant additional costs and burdens on the contractor entitle the latter to invoice the costs to the client. If the client does not remedy the circumstances responsible for the delay in a reasonable time, the contractor is entitled to otherwise dispose of the materials and equipment acquired for performance execution. In the event of continuation of performance execution, all dates and deadlines shall also be postponed by the period required to gather together the equipment and materials used elsewhere. Costs incurred as a result shall be borne by the client. In this case, the contractor is entitled to adjust his prices accordingly.
13. Fulfilment and acceptance
The delivery is deemed fulfilled if objects without installation or assembly are ready for shipment in contractual condition and this has been communicated to the client. The client undertakes to check the goods without delay upon delivery and to report any defects immediately in writing. In the case of objects requiring installation or assembly, the contractor shall notify the client of completion of the work and request him to take delivery. The client has to take delivery within a period of 7 days of receiving notification or report any defects. On the last day of the deadline period, the order is then considered as accepted. If the client makes use of the contractual goods, equipment or plant / plant components, they shall be deemed accepted. By means of his signature on scheduled work sheets or time sheets, the client or his representative confirms the proper execution of the work ordered. Subsequent objections, in particular regarding installation times, cannot be taken into consideration. In the case of work ordered on a scheduled work basis, the client is obliged to sign for acceptance of the services and the recorded scheduled work directly after completion of the services.
14. Product liability
The services provided as well as the goods, equipment and systems supplied always offer only the assurance that can be expected on the basis of licensing regulations, operating manuals, maintenance and operating instructions or other regulations regarding maintenance and handling, particularly in terms of prescribed inspections of equipment and systems, or due to instructions given any other way. Product liability of operationally used items is excluded.
In accordance with §928 of ABGB, there is no warranty for obvious defects that are recognisable at handover, acceptance or initial operation of the contractual performance. The warranty is met by free repair within a reasonable period of the defects detected; if a remedy is not possible or only with disproportionate costs, at the contractor's choice, he is to provide an appropriate price reduction or, failing that, to subsequently deliver the same thing. The warranty starts with handover to or with acceptance by the client, or failing this, at the latest when invoiced; however, if the client should put the services provided into operation (trial operation) before handover or acceptance, the warranty period starts from that date. The deadline for judicial enforcement of the warranty is limited to six months as per §933 of ABGB. If the involvement of the client or one of his subcontractors is required to remedy a defect, the client shall only invoice the contractor the actual labour and material costs for the replacement of the defective part. Further claims as listed in Item 9 above, as well as processing expenses, costs of site supervision, damages for delayed total handover, as well penalty claims, are excluded.
16. Other provisions
Agreements must be in written form and it is explicitly agreed that notifications by fax acquire legal force only if directed to the fax number stated on the contractor's letterhead. Changes to the client's address are to be notified to the contractor by registered letter. Legally binding written communications can be made to the last address submitted to the contractor in this manner. If any provision of this contract or of these terms and conditions are invalid, only these provisions cease to have legal effect and this does not nullify the entire contract or the entire terms and conditions. The invalid contractual provisions or terms and conditions are then to be interpreted as is most appropriate to the commercial intent of the contract. It is agreed that the jurisdiction of the appropriate court in Vienna is competent for all disputes arising from this contractual relationship. Austrian law applies. If, in the event of a sale to consumers in the terms of the Consumer Protection Act, individual provisions of the underlying contract or these terms and conditions contradict mandatory provision of Austrian legislation, these provisions are replaced by those of the Consumer Protection Act.