Conditions Terms for Mechanical Engineering (AGB-engineering) April 2004
CONDITIONS GENERAL TERMS AND CONDITIONS FOR MECHANICAL ENGINEERING (AGB-MASCHINENBAU) FROM APRIL 2004
1. APPLICATION
1.1. These General Terms and Conditions for Mechanical Engineering (hereinafter referred to as GTC for short) regulate the services of ENZFELDER GmbH Antriebs- und Hebetechnik (hereinafter referred to as “Contractor”) in the field of mechanical engineering. These are basically designed for legal transactions between companies. If, as an exception, they are also used as a basis for legal transactions with consumers within the meaning of the Consumer Protection Act, they only apply insofar as they do not contradict mandatory provisions
1.2. These terms and conditions apply to all legal transactions and legal relationships between the client and contractor, for example not only for the first legal transaction, but the application of the terms and conditions is also expressly agreed for all additional and follow-up orders as well as other transactions.
1.3. Purchasing or other terms and conditions of the client are not valid and are hereby expressly contradicted. The contractor expressly declares that he only wants to enter into contracts on the basis of his general terms and conditions. If, as an exception, the application of the general terms and conditions of the client is agreed in writing, their provisions only apply if they do not conflict with these general terms and conditions. Non-conflicting provisions in the terms and conditions remain in place.
1.4. The client declares that he had the opportunity to take note of the content of the terms and conditions prior to the conclusion of the contract and that he agrees with their content.
1.5. Changes and additions to these terms and conditions must be made in writing to be legally effective. This requirement of written form can also only be waived in writing. It is noted that there are no side agreements.
2. OFFERS, CONCLUSION OF CONTRACTS
2.1. Offers by the contractor are subject to change and non-binding.
2.2. The contractor accepts offers or orders from the client by means of a written order confirmation or by delivering the object of purchase or by providing the service.
2.3. The information about the services and products of the contractor in catalogs, price lists, brochures, company information material, brochures, advertisements on exhibition stands, in circulars, advertising mailings or other media are non-binding, unless they are expressly declared in writing as part of the contract.
2.4. The contractor's cost estimates are generally made without any guarantee of completeness and correctness.
2.5. In the case of pure material deliveries (e.g. semi-finished products) and semi-finished products in series (e.g. individual parts), dimensions, weights and illustrations in offers and price lists are non-binding for the contractor and not decisive for the calculation. The weight determined by the contractor is decisive for billing and payment. Customary deviations of the goods in quality, dimensional accuracy and color are reserved. Deviations in the quantity of goods ordered are also permitted up to + 5% and in the case of custom-made products up to + 10%.
3. DELIVERY / PERFORMANCE PERIODS
3.1. Delivery / service deadlines are non-binding, unless they have been expressly agreed in writing as such in the order confirmation or in the individual contract.
3.2. If, for whatever reason, the order is changed or supplemented after the order has been placed, the delivery / service period is extended by an appropriate period of time.
3.3. Unless otherwise agreed, the delivery period begins at the latest at the latest of the following times:
a) Date of the order confirmation
b) Date of fulfillment of all technical, commercial and other requirements incumbent on the client
c) Date on which the contractor receives an agreed deposit or security deposit.
3.4. If the contractor is involved in the fulfillment of his obligations through the occurrence of unforeseeable circumstances or circumstances for which the contractor is not responsible, such as operational disruptions, sovereign measures and interventions, energy supply difficulties, failure of a supplier that is difficult to replace, strike, obstruction of traffic routes, delay in customs clearance or higher If violence is hindered, the delivery / service period is extended to a reasonable extent. It is irrelevant whether these circumstances occur with the contractor himself or one of his suppliers or subcontractors.
3.5. If the fulfillment of the contract becomes impossible due to reasons for which the contractor is not responsible, the contractor is released from his contractual obligations.
3.6. The contractor is entitled to carry out and offset partial or pre-deliveries. If delivery on call has been agreed, the service / object of purchase is deemed to be called no later than six months after the order has been placed.
4. FEES / PRICES
4.1. If an order is placed without a prior offer or if services are carried out that were not expressly included in the order, the contractor can claim that payment that corresponds to its price list or its usual remuneration.
4.2. The contractor is entitled to demand a higher than the agreed fee or the purchase price if the calculation bases existing at the time the order is placed, such as raw material prices, the exchange rate or personnel costs, change after the contract has been concluded.
4.3. All prices and charges are exclusive of the applicable statutory sales tax and are ex warehouse. Packaging, transport, loading and shipping costs as well as customs and insurance are at the expense of the customer. Packaging will only be taken back if expressly agreed.
4.4. Unless otherwise agreed, half of the payment / purchase price is due upon receipt of the order confirmation and the remainder upon delivery or availability for collection and after receipt of the invoice, free of charges and deductions.
4.5. Payment is timely if the contractor can dispose of it. Payment dedications by the client, for example on transfer receipts, are not binding.
4.6. In the event of default in payment, 12% p.a. is agreed. Should the contractor claim any further interest, he is entitled to demand this as well. Expedient and necessary costs incurred as a result of the delay in payment, such as expenses for reminders, collection attempts, storage costs and any judicial or extrajudicial legal fees are to be reimbursed to the contractor.
4.7. The benefits agreed upon when the contract was concluded, such as discounts and rebates, are granted on condition that payment is timely and in full. In the event of a delay with only one partial service, the contractor is entitled to set off this retrospectively.
4.8. The assertion of a right of retention and objection of the unfulfilled contract by the client in the case of alleged defects is excluded. Offsetting by the client with counterclaims or with alleged price reduction claims is only permissible if the claim has been legally established or if it is not disputed by the contractor.
4.9. If the client is in default with one of the contractual obligations or any other payment obligation towards the contractor, the contractor is entitled, without prejudice to other rights, to suspend his performance obligation until payment has been made by the client and / or to take advantage of an appropriate extension of the delivery period; to make all outstanding claims from this or other legal transactions due and to collect any delivered items again, without this relieving the client of his obligation to perform. A withdrawal from the contract by the contractor is only possible due to these actions if this has been expressly declared.
4.10. Should the client's financial circumstances worsen, the contractor is entitled to make the agreed fee or the purchase price due immediately and to carry out the order only against advance payment.
4.11. If a periodically billable fee, for example for service or maintenance, is agreed, this is due annually at the beginning of a calendar year. If the contract begins or ends during one year, this fee is due on a pro rata basis. This fee is value-secured according to the consumer price index 1996, whereby the month in which the service or maintenance contract was concluded serves as the starting point. If the CPI is no longer published in 1996, it will be replaced by the one following or closest to it. The contractor is also entitled to charge a periodically offset fee from the amounts listed in point 4.2. to adapt the reasons mentioned.
4.12. Costs for travel, daily and overnight allowances will be invoiced separately if the remuneration can be offset periodically. Travel times count as working time.
5. RISK AND SHIPMENT
5.1. The risk is transferred to the client as soon as the contractor has the object of purchase / the work ready for collection in the plant or warehouse, regardless of whether the goods are handed over by the contractor to a carrier or transporter. Dispatch, loading, unloading and transport are always at the risk of the client.
5.2. The client approves any appropriate shipping method. Transport insurance is only taken out upon written order from the client.
5.3. The contractor is entitled to collect the packaging and shipping costs as well as the remuneration or the purchase price cash on delivery from the client if the client's financial circumstances deteriorate or a credit limit agreed with the contractor is exceeded.
5.4. The place of performance is the contractor's works.
6. RESERVATION OF TITLE AND RIGHT OF RETENTION
6.1. All goods and products
remain the property of the contractor until full payment has been made by the client, even if the items to be delivered or manufactured are resold, changed, processed or mixed.
6.2. Until all claims of the contractor have been paid in full, the object of performance / purchase may not be pledged, assigned by way of security or otherwise encumbered with third-party rights. In the event of seizure or other claims, the client is obliged to point out the contractor's property rights and to notify them immediately.
6.3. The client hereby assigns all claims and rights to which he is entitled from the resale, processing, mixing or other utilization of the goods and products on account of payment. The client must note this assignment in his books and on his invoices until the remuneration or purchase price has been paid in full and notify his debtors of this. Upon request, he must provide the contractor with all documents and information that are required to assert the assigned claims and claims.
6.4. To secure its claims and to secure claims from other legal transactions, the contractor has the right to withhold the products and goods until all outstanding claims from the business relationship have been settled.
7. OBLIGATIONS OF THE CLIENT
7.1. In the case of assemblies by the contractor, the client is obliged to ensure that the work can be started immediately after the arrival of the contractor's assembly staff.
7.2. The client is responsible for ensuring that the necessary technical requirements for the work to be produced or the object of purchase are in place and that the technical systems, such as supply lines, cabling, networks and the like, are in a technically perfect and operational condition and with the works to be produced by the contractor or Items purchased are compatible. The contractor is entitled, but not obliged, to check these systems for a separate fee.
7.3. There is no obligation to check, warn or provide clarification with regard to any documents, information or instructions provided by the client and any liability on the part of the contractor in this regard is excluded.
7.4. The order is issued independently of any necessary official permits and approvals which the client must obtain.
7.5. The client is not entitled to assign claims and rights from the contractual relationship without the written consent of the contractor.
8. WARRANTY
8.1. The warranty period is limited to six months and begins with the transfer of risk within the meaning of these terms and conditions. This also applies to delivery and service items that are firmly connected to a building or property.
8.2. A guarantee is excluded if the technical systems such as supply lines, cabling, networks and the like are not in a technically perfect and operational condition or are not compatible with the works or objects of purchase to be produced by the contractor.
8.3. No warranty claims exist in the case of defects that have arisen through improper handling or overuse if statutory operating or installation instructions or instructions issued by the contractor are not followed; if the delivery item was created on the basis of the customer's specifications and the defect can be traced back to these specifications or drawings; in the event of incorrect assembly or commissioning by the client or third parties, in the event of natural wear and tear, in the event of transport damage, in the event of improper storage, in the event of operating conditions that disrupt the function (e.g. insufficient power supply), in the event of chemical, electrochemical or electrical influences, in the event of necessary maintenance not being carried out, or in the event of poor maintenance .
8.4. Notices of defects and complaints of any kind are to be made immediately in writing, stating the possible causes, otherwise the warranty claims will be lost. Verbal, telephone or not immediate notifications of defects and complaints will not be considered. After an agreed acceptance has been carried out, the complaint of defects that were ascertainable during acceptance is excluded.
8.5. Notices of defects and complaints are to be made at the contractor's headquarters, describing the defect as precisely as possible, and the customer must hand over the goods or work that are the subject of the complaint, provided the latter is feasible.
8.6. The contractor is entitled to carry out any examination that it deems necessary or to have it carried out, even if it renders the goods or workpieces unusable. In the event that this
If the search shows that the contractor is not responsible for any errors, the client must bear the costs for this examination for a reasonable fee.
8.7. If the objects of performance are manufactured on the basis of information, drawings, plans, models or other specifications provided by the client, the contractor only warrants that they are carried out in accordance with the conditions.
8.8. If the client makes changes to the object of purchase or works handed over without the prior written consent of the contractor, the contractor's warranty obligation expires.
8.9. When asserting secondary warranty claims, the contractor is entitled, at his option, to avert a request for conversion by means of a price reduction claim, provided that the defect is not significant and unrecoverable.
8.10. The client must also provide evidence of the existence of a defect at the time of handover in the first six months from the handover of the item / work.
8.11. All costs incurred in connection with the rectification of defects, such as transport, entry and exit as well as travel costs, are borne by the client. At the request of the contractor, the client must provide the necessary workers free of charge.
9. LIABILITY AND PRODUCT LIABILITY
9.4. The contractor is only liable for damage caused intentionally or through gross negligence. Liability for slight negligence is excluded. The client must prove that the contractor is at fault.
9.5. Liability for indirect damage, consequential damage, lost profit, financial damage, damage due to business interruption, loss of data, loss of interest and damage caused by third party claims against the client is excluded.
9.3. Any liability on the part of the contractor is in any case limited to the amount of the agreed fee or the purchase price for the respective order. The contracts accepted by the contractor are only accepted subject to this limitation of liability. Any further liability on the part of the contractor is expressly excluded. If the total damage exceeds the maximum limit, the claims for compensation of individual injured parties are proportionally reduced.
9.6. The client must inform the contractor immediately of any defects discovered in the goods or the work in the event of any other loss of any claims. Claims for damages are to be asserted in court within six months in the event of any other expiry.
9.7. The client can initially only demand improvement or replacement of the item / work as compensation; only if both are impossible or are associated with a disproportionate effort for the contractor, the client can immediately demand monetary compensation.
9.8. Liability is generally excluded in the event of non-compliance with any conditions for assembly, commissioning and use or the official approval conditions. The client is obliged to ensure that the operating instructions for the goods or works supplied are adhered to by all users. In particular, the client has to train and instruct his staff and other persons who come into contact with the delivered goods or works accordingly.
9.9. The obligation to pay compensation for property damage resulting from the Product Liability Act as well as product liability claims that can be derived from other provisions are excluded insofar as this is legally possible. The customer is obliged to transfer the disclaimer for product liability claims to any contractual partners. Recourse by the client against the contractor based on the claim in accordance with the Product Liability Act is excluded. The client must take out adequate insurance for product liability claims and hold the client harmless and harmless in this regard.
10. EARLY TERMINATION AND ERRORS
10.4. If a delivery / service is not possible for reasons for which the customer is responsible, or if a customer does not comply with a statutory or contractual obligation towards the contractor, the contractor is entitled to withdraw from the contract. In this case, the client has to reimburse the contractor for all disadvantages and lost profits.
10.1. The client waives the challenge / adjustment of this contract due to errors.
11. INDUSTRIAL PROPERTY RIGHTS
11.1. The client is responsible for ensuring that any design information, drawings, models or other specifications provided for production do not encroach on the property rights of third parties. In the event of any infringement of property rights, the client indemnifies and holds harmless the contractor.
11.1. Software, execution
Documents such as plans, sketches and other technical documents as well as samples, catalogs, brochures, illustrations and the like remain the contractor's intellectual property and enjoy copyright protection. Any duplication, distribution, imitation, processing or exploitation and the like that are not expressly permitted is prohibited.
12. SOFTWARE
12.1. If the object of performance / purchase also includes software components or computer programs, the contractor grants the client a non-transferable and non-exclusive right of use at the agreed installation location in compliance with the contractual conditions and documents (e.g. operating instructions, ...).
12.1. Without the prior written consent of the contractor, the client is not entitled - with any other exclusion of any claims - to duplicate the software, to change it, to make it accessible to third parties or to use it for purposes other than those expressly agreed. This is especially true for the source code.
12.2. A guarantee with regard to the software exists only for the compliance of the software with the specifications agreed upon when the contract was concluded, provided that the software is used in accordance with the installation requirements and corresponds to the applicable conditions of use. The contractor does not guarantee that the software is flawless and that it will function without interruption or error-free. The occurrence of errors cannot be ruled out.
12.3. The selection and specification of the software offered by the contractor is made by the client, who must ensure that it is compatible with the technical conditions on site. The client is responsible for the use of the software and the results achieved with it.
12.4. For software to be produced individually, the performance features, special functions, hardware and software requirements, installation requirements, conditions of use and operation result exclusively from the specifications to be agreed in writing between the contracting parties. The client must provide the information required for the production of individual software before the contract is concluded.
13. GENERAL
13.1. Should a provision of these terms and conditions be or become ineffective, this does not affect the validity of the remaining provisions. Ineffective provisions are to be concluded by the parties to the contract with a provision that comes closest to the ineffective provision and is customary in the industry.
13.2. The place of jurisdiction for all disputes arising from the contractual relationship or future contracts between the contractor and the client is the local court responsible for the contractor's registered office. The contractor is also entitled to take legal action at the general place of jurisdiction of the customer.
13.3. The contracting parties agree on the application of Austrian law. The application of the UN sales law is mutually excluded.
13.4. The client must immediately notify the contractor in writing of any changes to his name, company, address, legal form or other relevant information.
