Terms & conditions

These General Terms and Conditions of Business are principally designed for legal transactions between companies. If they should exceptionally also form the basis for legal transactions with consumers within the meaning of the Consumer Protection Act [Konsumentenschutzgesetz], they shall apply only insofar as they do not contradict the provisions of the first section of this Act.

CN = Contractor = Service Technologies GmbH & Co OG
CS = Customer
 

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1. Preamble

All offers, deliveries and services shall exclusively take place under these Terms and Conditions. The CS acknowledges these Terms and Conditions in all events by accepting the delivery or service. Deviating terms and conditions of the CS that are not expressly recognised in written form shall be non-binding for the CN even if the CN does not expressly object to them.
The following Terms and Conditions on the delivery of goods also apply analogously for services.


2. Conclusion of contract

All quotations are subject to change and non-binding. A contract shall be deemed to have been concluded when after receipt of the order the CN has sent a written order confirmation, and the CS does not demonstrably object to this within 10 days. Verbal, phone or wire agreements are only binding when they are subsequently confirmed in written form.

Modifications and additions to the contract require the written confirmation of the CN in order to be valid. The following sequence applies strictly to presume the conclusion of contract:

• 1. Written quotation by the CN
• 2. Order placement by the CS
• 3. Order confirmation by the CN

Limits of delivery: All works and components that are not definitively shown in the written quotation by the CN.

If import and/or export licences or exchange control authorisations or similar authorisations are necessary for the execution of the contract, then the party responsible for the procurement of this must undertake all reasonable endeavours to obtain the necessary licences or approvals in good time.


3. Plans and documents

The details of the weight, dimensions, capacity, price, performance etc. contained in catalogues, brochures, on the internet, in circulars, advertisements, illustrations and price lists etc. are only relevant if reference is expressly made to these in the quotation and/or the order confirmation.

Plans, sketches, cost estimates and other technical documents which can also form part of the quotation shall always remain the intellectual property of the CN, as shall also samples, catalogues, brochures, illustrations etc. Any utilisation, duplication, reproduction, dissemination and handing out to third parties, publication and presentation must only take place with the express consent of the owner.


4. Packaging

In the absence of agreement otherwise

• a) the prices stated exclude packaging;
• b) packaging shall take place in the way customary in the trade, to prevent transport-related damage to the goods on the way to the specified destination under normal transport conditions, at the expense of the CS, and shall only be taken back by agreement.

5. Transfer of risk

Unless otherwise agreed, the goods shall be deemed to have been sold ex works (EXW) without loading.
Otherwise, the INCOTERMS shall apply in the valid version on the day of conclusion of the contract. Transport or other insurance of the goods shall be arranged by the CS at its own expense.


6. Delivery period

6.1 The delivery periods stated by us are non-binding. When there is agreement on the delivery period, this shall commence with the latest of the dates below:

• a) Date of order confirmation;
• b) Date of fulfilment of all the technical, commercial and financial requirements incumbent upon the CS by agreement;
• c) Date on which the CN receives the down-payment payable before delivery of the goods and/or any bank guarantee to be provided has been opened.

6.2 The CN is entitled to undertake partial and predeliveries.

6.3 If the delivery is delayed due to a circumstance that has occurred on the CN’s side, which represents a reason to exonerate the buyer as defined within Art. 14, an appropriate extension of the delivery period shall be granted.

6.4 If the CN is responsible for causing a delay in delivery, the CS can either request fulfilment or declare its withdrawal from the contract, setting an appropriate grace period (at least 90 days).

6.5 If through the fault of the CN the grace period provided for in Art. 6.4 is not used, the CS can withdraw from the contract by a written notification in respect of all goods not yet delivered.

6.6 If the CS does not accept the contractually supplied goods at the contractually agreed place or on the contractually agreed date, and if the delay has not been caused by an action or omission of the CN, the CN can either request fulfilment or withdraw from the contract after setting a grace period. If the goods have been separated out, the CN can undertake the storage of the goods at the expense and risk of the CS. The CN shall also have a claim to reimbursement of all justified expenses it has had to make for the execution of the contract that are not included in the payments received.

6.7 Claims by the CS against the CN because of the latter’s default other than those stated in Art. 6 are excluded.


7. Acceptance / Commissioning

Insofar as the CS wishes an acceptance, this must be agreed explicitly in writing with the CN on conclusion of contract. Insofar as not provisions departing from this are agreed, this acceptance shall be undertaken at the place of manufacture or at a place to be determined by the CN during the CN’s normal working hours. It shall strictly be the case that the acceptance of the equipment / machine / work shall be fulfilled with its entry into productive operation = start of production. This shall also similarly apply to moulds, devices, components and prototypes.

The CN must inform the CS of the acceptance in good time so that the latter is present at the inspection, or can be represented by an authorised representative respectively. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980, BGBI. 1988/96, is expressly excluded.

The CS can only request a repetition of the acceptance in cases of material defects. An acceptance report must be written following an acceptance. If the acceptance has shown the contractual execution and efficient functioning of the delivery item, this must in all events be confirmed by both contracting parties. If the CS or its authorised representative is not present at the acceptance despite having been advised thereof in good time by the CN, the contractual object shall be deemed to have been accepted 2 weeks after the agreed acceptance date. On the date on which the acceptance, as described above, has taken place, the warranty period shall commence, the residual payments must be made by the CS and the risk shall pass to the CS. In any event, the CN must give the CS a copy of the acceptance report, the correctness of which the CS can no longer dispute, even if it or its authorised representative was unable to sign this due to their absence.

Unless otherwise agreed, the CN shall bear the costs of the acceptance undertaken. The CS itself however must bear the costs incurred by it or its authorised representative in connection with the acceptance, such as travel or subsistence costs and reimbursement of expenses.
Commissioning and installation shall be undertaken by the CN during its normal working hours, with corresponding personnel being provided by the CS. All the media required onsite (power, water, substrate etc.) shall be provided free of charge by the CS.

Transport and lifting tools required for the commissioning shall be provided free of charge by the CS. If the commissioning causes additional costs for reasons for which the CS is responsible, the CN shall invoice the CS for these. Defects that do not materially affect the functionality of the object of the contract or that have not been caused by the CN cannot hinder the final acceptance.

Requirements / service from the customer:
The CN requires the latest valid approved drawings etc. 14 days at the latest from placement of the written correct order. Manufactured parts shall be provided to the CN in sufficient quantity free of charge. These parts must be reliable and executed in sufficient quality according to the drawings. Deadlines and the number of samples to be provided shall be determined together by both parties to the contract. The samples/ parts provided can undergo damage – this is deemed as being well understood by the CS. The CS shall undertake the disposal of the parts.


8. Price

The prices stated in price lists, quotations and on the internet are subject to change. The prices stated in the order confirmation are relevant. Unless agreed otherwise, the prices apply ex works (EXW) of the CN without loading.
The CN reserves the right to errors in prices, as well as typesetting and printing errors.


9. Payment

9.1 Payments must be made in accordance with the agreed payment terms. If no payment term has been agreed, immediate payment shall be deemed to have been agreed.

9.2 The CS is not entitled to retain payments on account of claims under warranty or other counterclaims not recognised by the CN. Offsetting is only permitted against claims that are undisputed or have been established as having legal force.

9.3 If the CS is in default of an agreed payment or other performance, the CN can either insist on fulfilment of the contract and

• a) postpone the fulfilment of its own obligations until the settlement of the payments that are in arrears or other performances,
• b) make use of an appropriate extension of the delivery period,
• c) demand immediate payment of the still outstanding purchase price,
• d) insofar as on the CS’s part there is no reason for exoneration as defined within Art. 14, charge interest on late payments in the amount of 8% above the respective base rate of the European Central Bank, or declare its withdrawal from the contract after setting an appropriate grace period.

9.4 In all events the CS must reimburse the CN for all reminder and collection costs incurred as further damages caused by default.

9.5 If by the expiry of the grace period in accordance with 9.3 the CS has not provided the payment owed or other performance, the CN can withdraw from the contract by means of a written notification. At the request of the CN, the CS must return already delivered goods to the CN and pay it compensation for the reduction in value that has occurred, as well as reimbursing all justified expenses that the CN had to make for the execution of the contract. With regard to goods that have not yet been delivered, the CN shall be entitled to provide the ready or processed parts to the CS and request the corresponding proportion of the selling price for these.

9.6 Payment obligations, especially the specified monetary value, are deemed to be agreed in euros. In all cases conversion shall take place on the basis of the officially stipulated conversion rate.

9.7 If the CS’s ability to meet its financial obligations deteriorates between the order confirmation and delivery, or if we subsequently become aware that there are concerns about the CS’s ability to meet its financial obligations, the CN reserves the right to request payment in advance, retain outstanding deliveries or withdraw from the contract.


10. Retention of ownership

The CN shall retain the right of ownership of the purchase item until the complete fulfilment of all the CS’s obligations.
The CN is entitled to make its ownership of the delivery item known externally. The CS must comply with the necessary formal requirements for the preservation of the retention of ownership. In the event of attachment or any other claim, the CS shall be obliged to assert the CN’s right of ownership and inform the latter of this immediately.

The CS is entitled to resell the goods belonging to the CN, as well as products owned or jointly owned by the CN in the normal course of business. The claim obtained by the CS from such sale is hereby ceded to the CN.
The CS must sufficiently insure the goods belonging to the CN or products owned or jointly owned by the CN at its own expense.


11. Warranty

In accordance with the provisions below, the CN is obliged to rectify any defect adversely affecting the serviceability that is due to an error in the design, material or execution. The CN must also answer for defects in expressly stipulated product properties.

The goods must be inspected by the CS immediately upon their arrival at the destination. The duty of inspection shall also apply even if type samples have been supplied. The delivered goods shall be deemed to have been approved if the CN does not receive any notification of defects within 8 working days of the arrival of the goods at the destination.
Hidden defects that cannot be discovered during the immediate inspection can only be asserted against the CN if notification of the defect is received by the CN within 3 months of the arrival of the goods at the destination.

The CS can only invoke this Article if it immediately informs the CN in writing of the defects that have appeared. The provision on presumption in Section 924 of the Austrian Civil Code [ABGB] is excluded. The CN that has been informed in this way must, if the defects must be rectified in accordance with the provisions of this Article, choose between:

• a) repairing the defective goods on the spot;
• b) arranging for the defective goods or defective parts to be sent back for the purpose of rectification;
• c) replacing the defective parts; and
• d) replacing the defective goods.

If the CN has the defective goods or parts sent back for the purpose of rectification or replacement, then unless otherwise agreed the CS shall assume the costs and risk of transport. Unless anything has been otherwise agreed, the return of the rectified or replaced goods or parts to the CS shall take place at the expense and risk of the CN.

The defective goods or parts replaced in accordance with this Article shall be available to the CN.

The CN shall only have to pay the costs of a rectification of defects undertaken by the CS itself if the CN has provided its written consent to this.

The CN’s duty under warranty shall only apply to defects that appear in compliance with the intended operating conditions and during normal use. In particular it shall not apply for defects due to incorrect assembly by the CS or its agents, poor maintenance, poor repairs or repairs undertaken without consent of the CN or changes made by a person other than the CN or its agents, or normal wear and tear.

The CN shall only be liable for those parts of the goods that the CN obtained from the sub-suppliers prescribed by the CS to the extent of the claims under warranty to which the CN itself is entitled against the sub-supplier.
If a product is produced by the CN on the basis of the design details, drawing or models provided by the CS or is packed in accordance with the customer’s specifications, the CN’s liability shall not extend to the correctness of the design, but to the fact that the execution took place in accordance with the details provided by the CS. In these cases, the CS must indemnify the CN and hold it harmless in the event of possible violation of property rights. The CN does not accept any guarantee when accepting repair orders or in the case of alterations or retrofitting of old or third party goods, or the supply of used goods.

From the commencement of the warranty period, the CN shall not accept any further liability than that specified in this Article. The warranty term shall commence with the handover to the CS. The CN shall offer the CS an individual service and maintenance agreement as an additional assurance of the availability of the object of the contract.


12. Liability

12.1 It is taken as expressly agreed that the CN shall not have to pay the CS any compensation for personal injury, damage to goods that are not the object of the contract, for other damages and loss of profits, unless from the circumstances of the individual case it is evident that the CN is culpable of gross negligence. The reversal of the burden of proof pursuant to Section 1298 ABGB is excluded.

12.2 The purchase object offers only such reliability as can be expected on the basis of licensing requirements, operating instructions, provisions by the CN on the handling of the purchase object – in particular in respect of any prescribed checks – and other information provided.

12.3 In the event of slight negligence by the CN, unless Article 12.1 applies, the compensation shall be limited to 5% of the order value.

12.4 All claims for damages from defects in deliveries and/or services must – should the defect not be expressly recognised by the CN – be asserted judicially within one year of the expiry of the contractually specified warranty period, otherwise the claims shall expire.


13. Consequential damages

Unless otherwise specified in these Terms and Conditions, the CN’s liability towards the CS for production stoppages, lost profit, downtime, contractual losses or any other economic or indirect consequential loss is excluded.


14. Reasons for exoneration

The parties shall be fully or partially released from the timely fulfilment of the contract if they are hindered in this by events of force majeure. Events of force majeure are deemed to be exclusively events that were unforeseeable and unavoidable for the parties and do not come from their sphere. However, strike and labour disputes shall be regarded as an event of force majeure. If the CS is hindered by an event of force majeure, it can however only invoke the existence of force majeure if it supplies the CN with an opinion sent by recorded delivery immediately, however at the latest within 5 calendar days, and confirmed by the respective government authority or chamber of commerce of the delivery country, on the commencement and foreseeable end of the hindrance, the anticipated effect and the duration of the delay.


15. Data protection

The CN is authorised to store, transmit, process and delete personal data from the CS within the context of the course of business.

The parties undertake to maintain absolute secrecy towards third parties in respect of the knowledge acquired from the business relations.


16. Place of jurisdiction, applicable law, place of performance

The place of jurisdiction for all disputes arising directly and indirectly from the contract is the Austrian court with local competence for the CN’s registered office. The CN can however also invoke the court with competence for the CS.

The parties can also agree upon the competence of an arbitration court.

The contract is subject to Austrian law with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980, BGBl. 1988/96. The contractual language is German.

The place of performance for delivery and payment is deemed to be the CN’s registered office even when the handover takes place contractually at a different place. In the event of force majeure, the parties must make every endeavour to rectify or reduce the difficulties and foreseeable damage, and keep the opposite party continuously informed about this.
Otherwise they shall be liable to pay damages to the opposite party. Deadlines or periods of time that cannot be met due to the impact of force majeure shall be extended as a maximum by the duration of the effects of such force majeure, or as applicable by a period of time to be set by mutual agreement.
If a circumstance of force majeure lasts longer than four weeks, the CS and CN shall undertake negotiation to seek an arrangement for handling the technicalities of the effects. If no amicable solution should be achieved, the CN can withdraw fully or in part from the contract.


17. Series

For regularly recurring, longer-term intervals (standard material and components)

17.1 Conditions of acceptance: The orders concluded with the CN, framework orders and delivery schedules transmitted shall oblige the CS to accept or at least cover the costs of the entire quantity of the agreement demonstrably concluded by the CN with its contractor. Terms and conditions to the contrary shall have validity only after written acknowledgement by the authorised representative of the CN. Over- and under-deliveries in respect of the individual call-off shall be permitted after consultation when necessary and when possible.

17.2 Readiness for delivery: The CN shall do everything possible to comply with the conclusively agreed framework conditions.

17.3 Minimum inventory level: At the CS’s request, the CN shall keep a minimum level of one week’s inventory in stock for regular, recurring, longer term intervals for standard materials and standard components. The conditions of acceptance from paragraph 1 also apply for this service.

17.4 Reliability of supply: The CS undertakes in any event to provide timely information to the CN if materials or components change or are terminated. The lead time for this shall be at least 1 year. The CN must acknowledge receipt of the information in written form.


18. Material releases

These shall take place exclusively by written consensus between the CS and CN, and shall apply until written revocation, which must also be acknowledged in writing by the CN. A change to materials can only take place as per paragraph 17.2.

19. Sales restrictions

20. Concluding provisions

If individual provisions of these General Terms and Conditions of Business and Delivery should be or become ineffective, the effectiveness of the remaining provisions shall remain unaffected by this. The ineffective provisions must be replaced by a provision that comes as close as possible economically to the ineffective provision.

Deviating contractual agreements require the written form. In the absence of this form they shall be ineffective.