1. General, Applicability
Consumer” as referred to in the following provisions is a consumer within the meaning of the Consumer Protection Act (BGBl 1979/140 in its current version) and therefore a natural or legal person that is not a business.
“Businesses” as referred to in the following provisions are natural or legal persons or partnerships with legal personality for whom the present contract relates to the operation of their business. Businesses also include permanently established organisations pursuing independent business activities, even if these activities are not for profit.
Both Consumers and Businesses are referred to as “Customers” in the following provisions.
All legal transactions, deliveries and other services and quotations made by us are made solely on the basis of these Terms of Business. The Customer expressly acknowledges that we hereby reject any deviating provisions contained in an order or other business documentation of the Customer. Any deviating conditions of the Customer are not accepted by us and shall only apply where we provide confirmation in writing, even if we do not specifically reject such conditions on an individual basis. In relation to Businesses, these Terms of Business in their applicable current version shall apply as a framework agreement for all further legal transactions.
2. Conclusion of contract
Our quotations and price lists are non-binding and without obligation. Contracts shall only be concluded upon our written order confirmation or through our performance (e.g. delivery/dispatch of the goods). All other agreements, including those made later or additionally, shall only become effective upon our written confirmation. Our employees are not authorised to make legally binding statements in our name, unless we have issued special power of attorney to the Customer.
Items sent for approval or as samples within the scope of orders shall be deemed to be approved by the Customer if they are not returned (received by us) within 14 days.
Technical details in our documentation shall only be considered as approximate values, unless they are expressly warranted as binding by us. We reserve the right to make construction and manufacturing related changes and alterations in any event. Written or numerical errors in quotations, order confirmations or invoices may be corrected by us at any time.
All prices provided by us are without obligation. Unless agreed otherwise in writing, we do not guarantee the accuracy of our quotations.
All prices provided or agreed by us with a Consumer relate to the current calculation at the time of conclusion of the contract and are valid for 2 months.
In relation to Businesses we shall be entitled to increase prices on the basis of any changes to wage costs due to statutory provisions, collective agreements or internal settlements, together with changes to any cost centres relevant to the calculation, or to costs necessary for performance, such as for materials, energy, transport, third party work, financing etc. The Business shall have no right of withdrawal or claim that the basis of the transaction has ceased to exist for this reason. Unless agreed otherwise in writing, all prices are to be deemed not to include ancillary costs.
Costs for packaging, postage, customs and other services (installation, assembly etc.) shall be charged for separately. We are entitled to charge a flat rate for shipping and freight costs. Transport is at the cost and risk of the Customer. We are not obliged to arrange transportation insurance for the goods.
The prices quoted only apply when the entire order quoted for is placed. It is a condition that delivery and installation can be carried out at the same time. Any additional costs arising in connection with necessary unforeseen interruptions to the installation shall be charged for separately.
Works which are ordered but not included in the quotation will be carried out under our conditions and standard rates according to our expenditure.
Charges made on a quantity basis will be on a section by section basis in accordance with the building progress. Within 14 days of our request, the applicable quantity must be jointly agreed. If the Customer does not participate in agreeing the quantity, then our calculated quantity shall be deemed agreed.
Agreed delivery dates commence from when we send the order confirmation. The relevant time period shall not, however, commence until we confirm that we have received all technical or other information, documents, advance payments or other services from the Customer that are necessary for the fulfilment of our obligations. Where agreed payments are delayed the delivery period shall be extended correspondingly. The delivery date shall be deemed to be met if the delivered item has left our depot prior to the expiry of the delivery period, or the Customer has at that point received notification that we are ready to deliver or, in respect of agreed installation, the equipment is ready for operation by the expiry of the delivery period. The equipment shall be ready for operation when it can be properly used and no material defects prevent its use. This also applies when the manufacture of non-essential items occurs at a later date, or when any prior services necessary for manufacture of the equipment by other firms or the Customer are not provided and do not permit a trial operation, or when the equipment is not accepted despite the imposition of a deadline. If it is not possible to carry out the trial operation directly following the completed installation of the equipment for reasons not attributable to us, any additional costs arising from this shall be charged for separately.
Promised delivery times will be adhered to as far as possible but are not binding. Delays in delivery do not entitle the Customer to withdraw from the contract nor give rise to any claims for damages, unless the delivery delay is due to our gross negligence or wilful intent. Additionally, delivery delays do not entitle the Business to bring warranty claims and/or claims on the basis of mistake. We are entitled to make partial or pre-deliveries and to charge for these.
We are entitled to choose the type and method of delivery and shall have no liability for this. We are not obliged to choose the least expensive method of transport.
Packaging, including for partial or pre-deliveries, shall be in accordance with normal commercial practice. Any additional packaging shall be at the Customer’s expense.
Supplements for express delivery and air freight shall be separately charged for. Transportation insurance shall only be provided at the Customer’s request and expense.
In the event of operational disruption or acts of God and other events beyond our control, in particular, delivery delays (such as, in particular, transport and/or customs delays) and similar on the part of our suppliers, we shall be entitled either to extend the deadlines accordingly or to withdraw from the contract on the basis of the unfulfilled part without liability to the Customer (except in the case of wilful or grossly negligent conduct on our part). Additionally, the Business shall not be entitled to bring warranty claims and/or claims on the basis of mistake arising from this section. This also applies if the events occur at a time when we are in delay.
Where changes to implementation become necessary for structural reasons, or due to official documentation, or at the request of Customer, which necessitate multiple deliveries or more services or if, for reasons not attributable to us, a test operation is not possible or only possible at a later date, the delivery date shall be extended appropriately. Any arising additional costs shall be met by the Customer.
The risk in price and performance shall transfer to the Customer upon our notification of the Customer of readiness to dispatch, however, in the case of direct delivery from our depot by our suppliers at the latest upon delivery from our depot, in any event independently of any specially agreed price arrangements. This shall also apply if we have agreed additional services (such as, for example, assembly, installation etc.). If it is not possible to send goods that are ready for dispatch or to make the agreed installation for reasons not attributable to us, we shall be entitled at our discretion and at the Customer’s risk and expense to store the goods, upon which delivery shall be deemed to have occurred. In this regard we shall, in particular, be entitled to undertake the storage ourselves at normal commercial rates, or to store the goods that are ready for dispatch with third parties in the Customer’s name and at its expense. The place of business of our company is agreed as the place of performance, notwithstanding any agreement concerning the place of delivery and the assumption of any transport costs arising.
Preparatory works for installation are to be undertaken by the Customer in a timely manner in order that the installation can be commenced immediately upon the arrival of the installation team and completed through to acceptance by the Customer without delay. Authorised staff are to be made available to provide accompanying access to fully or partially obstructed building areas. If the above mentioned preparatory works are not completed, or the accompanying access staff are not present, then we are entitled to postpone the commencement of installation without any consequences for delay and any costs already incurred shall be charged to the Customer. Prior to commencement of installation the Customer is required to visit the construction site with our installation supervisor and to agree the installation timetable. The Customer must ensure that delivered parts, scaffolds and equipment are protected from damp, dust and dirt and any other adverse influences and are safely stored. We accept no liability for any damage arising at the construction site or to the delivered material, e.g. due to fire, explosion, lightning strike, water, chemical substances and/or damage to items caused by the Customer or third parties. Additionally, the Customer is required to make available timely technical support at its risk and expense and to provide all services necessary on the construction side for fulfilment of the contract, such as, for example (i) to make available all necessary aids and equipment necessary for installation and operation, such as, for example, forklifts, cranes, hoists, scaffolding and any other assembly tools not normally found in a standard hand tool set as well as heating, illumination, power and other services, including the necessary connections, together with (ii) a lockable room for long installation periods (more than 3 working days).
For side works directly connected with the installation of equipment the Customer shall make available at its risk and expense any necessary and appropriate workers (e.g. roofers, plumbers, carpenters etc.). No transfer of workers shall arise on this basis.
If construction is based on Customer documentation (design specifications, drawings, models, etc.), we accept no liability for the correctness of the construction and shall only ensure that the work is carried out in accordance with the Customer’s requirements.
Following completed delivery and/or installation - even when there has only been partial installation or delivery - the Customer is required to accept the equipment without delay following notification of its readiness for acceptance by an installer and to sign the acceptance certificate, specifying in detail any objections. Otherwise acceptance of the delivered (part) equipment shall be taken to be without defects.
6. Documents and data provided
Any materials such as paper, data, and data media of any type provided by the Customer are to be collected from us by the Customer within four weeks of our invoice. Following expiry of this deadline we shall have no liability of any kind for uncollected materials and shall be entitled to dispose of the materials at the Customer's expense without any right to claim compensation for the same or, at our discretion, to store the materials in the Customer’s name and at its expense ourselves or with a third party. In no event shall we be obliged to store these documents or any objects related to their reuse beyond the date stated by us.
For materials provided by the Business we have no duty to undertake tests or provide warnings. In particular, we shall not check the accuracy of any data stored on data media provided to us. We accept no liability of any kind for direct and indirect losses caused through errors in such materials.
7. Payment terms, delay, prohibition on set-off, deliveries abroad
We have the right to raise partial invoices for our services. We are entitled to send our invoices by electronic means. The Customer hereby confirms its express agreement to this method of transfer. Our invoices, including partial invoices, are due for payment 30 days following their issue date, clear of any deductions and expenses and in particular without any discount. Subject to any written agreement or statutory obligation to the contrary, securities shall not be accepted and shall be considered to be arrears. Bills of exchange or cheques shall only be accepted by special agreement. We reserve the right to attribute payments received to any outstanding debts due to us from the same Customer at our discretion.
Where the Customer’s payment is delayed we are released from any further obligations to provide services or make deliveries and are entitled to withhold any outstanding deliveries or services, or to require advance payments or the provision of guarantees. Furthermore, the Customer is required on a strict liability basis to pay default interest in the sum of 9.75% per month and we are further entitled to apply any additional bank interest in the usual amount. In addition, the Customer must compensate us for any arising reminders and debt collection charges and shall be in particular required to pay the costs of the collection agency that has been commissioned to collect the debts, in accordance with the maximum fees for collection agencies as stated in the respective regulation of the Austrian Federal Ministry for Economic Affairs (BMwA).
Payment reminder - no reminder fee/default interest
1. Warning - no reminder fee/default interest
2. And Final Warning - reminder fee 10€ and default interest 9.75%
If, following conclusion of the contract, there is a material deterioration in the assets of the Customer or we become aware of circumstances which would in our opinion lower the credit-worthiness of the Customer, all claims will immediately become due for payment. Any further deliveries will only be made on provision of advance payment.
The Business will only have a right of set-off where legally binding claims have been established or accepted by us. Additionally, the Business is not entitled to withhold payment.
The Consumer shall have a right of set-off only in the case of our insolvency or for counterclaims which have a legal connection to the Customer's account payable which have been legally established or accepted by us.
For export transactions the Customer shall be solely responsible at its own cost for obtaining and complying with all necessary export, customs and other permits or similar. We make no warranty or guarantee of any kind as to the legal permissibility of the export of the purchased goods. Furthermore, the Customer must return to us all original export and customs documentation, otherwise it shall be liable to pay any arising Value Added Tax. In addition, for export transactions it shall be a condition of our delivery that an irrevocable letter of credit from a bank specified by us is obtained, which can be utilised on production of shipping documentation or the freight forwarding company's certificate of receipt.
For contractually unforeseen interruptions to installation that are not attributable to us, we are entitled to present partial invoices.
8. Retention of title
We reserve the right of retention of title in all goods delivered by us until full payment of the purchase price or labour costs, plus interest and additional charges, regardless of the legal basis. An order consisting of several partial deliveries shall be regarded as a single order, whereby our retention of title to all goods delivered until payment in full of all claims arising from this legal transaction shall not be affected. The exercise of our right of retention shall not be considered a withdrawal from the contract, provided that we do not - which we are unilaterally entitled to do - withdraw from the contract, and does not release the Customer from its obligations, in particular for payment of the fees.
The Customer is entitled to transfer its future rights in the purchased goods within the scope of our retention of title in the course of its business operations, but not to exercise any lien or pledge of security over the purchased goods. This right of the Customer may be revoked by us at any time.
The Customer must notify us immediately of any lien or other impediment to the title of a third party. The Customer shall bear any costs and measures necessary to remove the impediment, in particular the costs of any related court proceedings or similar.
The retention of title shall extend to products arising from processing. In the event that our goods are processed, combined or mixed with other materials, we shall have joint title in all arising products proportionate to the pro-rate value added.
The Customer assigns to us with immediate effect all claims from the sale of goods to which we retain title – if applicable, in the amount of our proportion of joint ownership – for the purpose of securing and satisfying the claim. We accept this assignment. The Customer is required to notify us of the name and address of the purchaser, the position and amount of claims arising from the onward sale and demonstrably to inform the relevant purchaser of the assignment of the claims. Furthermore, the Customer shall be required to enter the assignment of the claim to us in its business accounts in a suitable manner. We are entitled to notify the Customer’s purchaser of the assignment at any time. Any costs arising from the assignment shall be met by the Customer.
The seller now assigns to us all sums received through cash sales of goods to which we retain title, in the amount owed to us at the point of delivery of these goods to it and we now instruct the Customer to secure and hold these sums for us.
If the Customer does not fulfil its obligations or ceases payments, the entire outstanding amount shall immediately become due, also insofar as bills of exchange with a later maturity date are pending. In this event we are entitled to demand the surrender of the purchased goods - in the case of Businesses excluding all rights of retention. Following the return of the purchased items we may, at our discretion, either sell the purchased items and credit the amount obtained less a 20% deduction for resale charges to the Customer’s existing obligations, or to deduct the purchased item from the invoice price after deduction of any depreciation and to charge the Customer a hire charge for the delivered product at the usual hire rate for the duration of its possession.
9. 9. Warranty, Damages, Aliud delivery, Product liability
9.1. Common provisions for Consumers and Businesses
The warranty shall not be valid if the Customer or third parties make alterations or repairs to the delivered goods without our written consent. In cases of dispute the Customer is initially obliged to accept the goods and to off-load and store them appropriately.
We shall only be liable to our Customers for losses incurred in the course of business in the event of our wilful intent or gross negligence or the wilful intent and gross negligence of our agents, with the exception of personal injury losses and legal transactions with Consumers, for which we shall be liable for simple negligence. Our liability for consequential damages or damages for pure economic loss, loss of profit or third party losses in respect of Businesses is excluded in its entirety.
Any assignment of warranty claims and claims for damages or similar - with the exception of pure money claims by Businesses - is prohibited.
We do not warrant that subsequent deliveries will correspond exactly with the first delivery.
Instructions provided in brochures, user instructions or other product information are to be strictly complied with by the Customer in order to avoid any type of loss. The Customer is hereby warned against any usage outside of the defined area of use.
9.2. For transactions with Businesses the following provisions also apply:
Complaints regarding defects are to be made by the Customer in writing directly following receipt of the delivery but at the latest within 8 days of delivery and before any processing or adaptation and to the exclusion of any warranty and/or damages claims or claims of mistake. This does not give rise to any right to withhold the invoice sums or any part thereof.
For defects which could not be seen at the time of delivery the warranty period for Businesses shall be six months from delivery and will not be extended or interrupted by attempted rectification. This also applies to partial deliveries. Such defects are to be notified in writing within 8 days from discovery of the defect to the exclusion of any other warranty and/or damages claims or claims on the basis of mistake. This does not give rise to any right to withhold the invoice sum or any part thereof.
Any additional deviations of the delivered goods from those ordered, such as incorrect measures or incorrect goods (aliud delivery) must be notified by Businesses within 8 days from delivery and before any processing or adaptation, even if the goods were not delivered directly to the Customer. Otherwise the goods shall be deemed to be accepted and cannot be returned to us or exchanged.
Our advice, whether provided in words or writing, is non-binding and does not release the Business from its obligation to check our products for suitability and for the envisaged purpose.
The Business must always prove the defectiveness of the delivered goods at the point of transfer and the legal assumption of section 924 of the Austrian Civil Code (AGBG) is expressly excluded.
Those goods which we have obtained from suppliers shall be warranted by us only to the extent to which the respective product is covered by our own warranty claims against the supplier. We only offer guarantees on products delivered by us equivalent to the usual standard guarantees and qualities on these types of product. For any additional characteristics, such as in particular those contained in public announcements, for example, advertising and in the particulars enclosed with the products, we only offer a guarantee where these characteristics or specifications have been guaranteed in writing by us during the course of the order placement.
For equipment, replacement parts and machinery only defects which affect functionality and not just the outer appearance shall be admissible as warranty claims. The warranty obligation extends without exception to the defective machinery parts but not to time incurred in raising the defect and transport costs.
At our option we shall fulfil warranty claims through exchange, repair, reduction in price or conversion.
To the extent not otherwise provided for in a special agreement, with Business transactions the place of performance for services to be provided by us arising from the warranty provision is our place of business.
Any assignment of warranty claims and claims for damages or similar - with the exception of pure money claims - is prohibited. In the event of onward sale of the delivered items by the Business any claims against us arising from the warranty shall cease and the right of regress pursuant to section 933 b ABGB shall become time-barred after 6 months from delivery/performance.
Should the Business itself be found liable on the basis of the Austrian Product Liability Act or other similar foreign law provisions, the Business shall have no regress against us, in particular within the meaning of section 12 of the Austrian Product Liability Act or any similar foreign law provisions.
If a Business moves the goods delivered by us outside of the European Economic Area during the course of business it is required to exclude liability for damages pursuant to the Product Liability Act in respect of its customer, to the extent that this is possible under the applicable or agreed law between him and the customer. In this case or if this exclusion requirement is omitted, the Business shall indemnify us and hold us harmless in respect of any third party claims arising from product liability obligations. The Business shall also obtain adequate product liability insurance and provide a copy of the policy to us upon request.
10. Contractual adjustment, Contract withdrawal
Where unforeseen events significantly affect the commercial importance or the content of the services or have a significant impact on our business and in the event that it becomes subsequently impossible to execute performance, the contract shall be amended appropriately. To the extent that this is not commercially justifiable we have the right to withdraw from the contract in whole or in part. If we wish to exercise this right of withdrawal we must notify the Customer as soon as the impact of the event is identified, even if an extension to the delivery date was originally agreed with the Customer. In the event of delayed acceptance or other important reasons such as e.g. delayed payment by the Customer we shall be entitled to withdraw from the contract immediately upon provision of a 14 day deadline, which shall not affect our right to bring any other claims. Withdrawal shall become legally effective upon our unilateral declaration.
11. Copyright, Third Party Intellectual Property Rights
All documents provided to the Customer, in particular cost quotations, drafts, models, technical calculations and similar remain our property. The Customer is not entitled to provide these documents to third parties. The documents must be returned to us immediately upon request.
Plans, sketches or other technical documents as well as samples, catalogues, brochures, illustrations and similar shall remain our intellectual property and the Customer shall not receive or acquire rights of any kind to them, for example, usage or exploitation rights.
The Customer agrees that we may use products we create for it for advertising purposes and, for example, for demonstration purposes. The form of presentation and the choice of presentation medium is at our sole discretion.
For customised production the Customer guarantees that the creation of the delivery items in accordance with the contract or other services shall not infringe any third party intellectual property rights (patents, trade marks, design rights, copyright, equipment rights, product names, know how, territorial protection or rights of a similar nature, including rights that have only been applied for). We are not required to check whether any third party intellectual property rights in the goods to be manufactured exist, or will be infringed. The Customer shall fully indemnify and hold us harmless from any third party claims of this nature.
11.4. Image credits
We have the following pictures in use:
Elbphilharmonie by Thies Rätzke
ÖAMTC headquarters by Toni Rappersberger
12. Concluding provisions
The Customer shall notify us of any changes to its home or business address promptly and without request, unless the legal transaction that is the subject of the contract has been entirely fulfilled by both parties. If this notification is not provided any notices sent to the Customer shall be treated as received where we have sent them to the last address known to us. The burden of proof concerning receipt of the notice of changes shall fall upon the Customer in the individual case.
The language of the contract is German.
The place of performance for all contractual duties of the contractual partner is our main place of business in Kirchham, which shall not be affected by any agreement as to the place of delivery and the assumption of any transport costs arising.
Austrian substantive law shall apply exclusively to all legal transactions, in particular the contractual (supply-) Agreement and these General Terms of Business, excluding conflict of law provisions, in particular those relating to international private law, to the extent these refer to the application of foreign law. Where Austrian law in relation to cross-border issue provides for special international substantive laws which also apply in Austria, such as, for example, the UN Sales Convention, these are not to be applied and are to be specifically excluded. This also applies to questions concerning the coming into effect or interpretation of the Terms of Business and the contract. This choice of law shall only apply to Consumer transactions to the extent that the protection that is provided by compulsory regulations under the law of the state in which the Consumer has his habitual abode is not taken away.
The Court of Wels/Austria shall have exclusive jurisdiction for all legal disputes arising out of or in connection with the present contractual relationship with our Customers. We are however entitled at our option to bring a claim against our Customer in any other Court which has jurisdiction under national or international law. For Consumers this jurisdiction shall only be deemed to be agreed if the Customer has its place of residence or usual abode outside of the Republic of Austria and is not employed in Austria.
Should any of the provision of our terms of sale not be legally effective or become invalid, this shall not affect the validity of the remaining contractual provisions. The contracting parties commit to concluding without delay in place of the invalid provisions contractual provisions which most closely reflect the financial purpose of the ineffective provisions. This also applies to omissions in provisions.
The headings of the provisions contained in these terms of sale are solely for clarity and are not to be considered for the purposes of interpretation.
Neither the occurrence of business development between the contracting partner and us nor any delay or omission in exercising any of our rights, rights or redress or legal remedies pursuant to the foregoing Terms of Business shall be considered a waiver of such rights. Each of our rights and remedies contained in this document, together with any right of redress is cumulative and of equal importance alongside and in additional to any other statutory rights, rights of redress or legal remedies.
INNOTECH Arbeitsschutz GmbH, Kirchham on 5 September 2019