General standard terms and conditions
1.) Scope of application and deviations
a) The following General Terms and Conditions apply to all present and future contracts between the customer and ALPENKOHLE® GmbH (in the following “Contractor”).
b) Deviations from these terms and conditions and in particular the terms and conditions of the customer shall only apply if they are expressly recognized and confirmed in writing by the contractor.
2.) Offers and Side Agreements
a) Unless otherwise stated, the contractor’s offers are subject to change without notice with regard to all data provided, including the price.
b) If an order confirmation of the contractor contains changes compared to the order, these are deemed to be approved by the customer, unless the customer objects in writing without delay.
c) Agreements generally require written form.
3.) Placing of orders and Execution
a) The type and scope of the performance agreed can be deduced from the contract, the power of attorney and these general terms and conditions.
b) Modifications and additions of the order require written confirmation by the contractor in order to become subject of the contractual relationship.
c) The contractor undertakes to properly execute the order placed with him in accordance with the generally accepted rules of technology and the principles of sound financial management.
d) The contractor may use other appropriately authorized persons as sub-planners / sub-contractors to fulfill the contract.
4.) Price, payment and additional expenses
a) All prices are in EURO, unless otherwise stated.
b) The respectively applicable statutory value added tax is added to the prices, should the value added tax not be indicated separately.
c) In the absence of any special agreement, payment shall be made without any deduction of the account of the contractor, namely as follows:
i. 50 % within 14 days after acceptance of the order by the contractor.
ii. 50% within 14 days after handover of the service/delivery
d) The customer shall only be entitled to withhold payments or offset them against counterclaims to the extent that his counterclaims are undisputed or have been legally established.
e) In the event of a delay on the part of the customer in the performance of a partial service or an agreed cooperative activity, which delays the execution of the order or leads to additional expenses / standing times at the contractor, the customer shall reimburse the contractor for these additional expenses at the respective applicable rates / sales prices.
5.) Place of performance
Place of performance for all services is the registered office of the contractor, unless otherwise specified.
6.) Conditions of delivery
a) Free ex works, in special cases delivered and assembled according to Incoterms 2010 CPT, unless otherwise agreed.
b) Unloading of the goods or individual components is the responsibility of the customer and is at his expense.
c) Partial deliveries are permitted, as far as reasonable for the client.
d) The disposal of packaging material is at the expense of the client.
e) The provision of operating and consumable materials in the course of installation and / or commissioning measures is the responsibility of the customer.
7.) Retention of title
a) The contractor reserves the right to property of the sold / delivered components / products / plans and services until full payment of the purchase price to the customer.
b) Any treatment and processing of the object of purchase subject to retention of title, as well as any combination with third-party objects by the customer or third parties, shall be carried out for the contractor. The contractor shall be entitled to co-ownership of newly created objects in accordance with the value of the object of purchase.
c) The customer shall be entitled to process and sell the object of purchase within the scope of his proper business operations; as security he assigns his claims from the resale of the object of purchase to the contractor already now and the contractor accepts this assignment already now.
d) The customer is authorized to collect the claim. The contractor reserves the right to announce the assignment and to collect the claim. The contractor undertakes to release the securities to which he is entitled insofar as the invoice amount of the goods subject to retention of title exceeds the claims to be secured, insofar as these have not yet been settled, by more than 20%.
e) In the event of significant breach of contract on the part of the customer, the contractor is entitled to withdraw from the contract and demand the return of the object of purchase by registered letter, in particular in the event of default of payment, despite a prior written warning and setting a deadline of 14 days.
f) In the event of access by third parties, in particular in the event of seizure of the object of purchase, the customer shall notify the contractor immediately in writing and shall inform the third party immediately of the contractor’s reservation of title. The buyer shall bear all costs which must be expended for the cancellation of the seizure and for a replacement of the object of purchase, unless they can be collected by third parties.
g) The customer is obliged to maintain the purchase object in a proper condition for the duration of the retention title, to have all maintenance work, analyses and necessary repairs provided by the manufacturer carried out immediately – apart from emergencies – by the supplier or by a workshop or laboratory recognized by the supplier for the care of the object of purchase.
h) If the law of a country does not permit the retention of title, but permits similar rights to be reserved, the supplier may exercise all rights of this kind. The customer is obliged to take measures at his own expense which are necessary to make these rights to the object of purchase effective and to maintain them.
8.) Approval Requirement
a) In the course of a plant permit and the associated detailed plant planning, the general conditions and/or conditions imposed by the authorities may change compared to the original service offer. Unless otherwise agreed, the fulfillment of these conditions or the adaptation to changed conditions are excluded from the offer and are the responsibility of the client. If the contractor is to carry out these activities, they must be ordered separately.
b) However, the contractor will support the client in the best possible way in the fulfillment / adaptation.
a) Contractor and customer commit themselves to mutual confidentiality of information provided.
b) The contractor is obliged to maintain secrecy in his planning and consulting activities if and as long as the customer has a legitimate interest in such secrecy. After execution of the order, the contractor is entitled to publish the contractual work in whole or in part for advertising purposes, unless otherwise contractually agreed.
10.) Protection of property rights
a) The Contractor reserves all rights and uses of the documents established by him (in particular plans and concepts, brochures, technical documents).
b) Any use (in particular processing, execution, duplication, distribution, public presentation, making available) of the documents or parts thereof is only permitted with the express consent of the contractor. All documents may therefore only be used for the purposes expressly specified when the order is placed or by a subsequent agreement.
c) The contractor shall be entitled, the customer shall be obliged to indicate the name (company, business name) of the contractor in publications and announcements concerning the project.
d) In case of violation of these provisions for the protection of the documents, the contractor shall be entitled to a penalty amounting to twice the appropriate fee for unauthorized use, whereby the right to assert a claim for damages beyond this is reserved. This no-fault penalty is not subject to the judicial right of moderation. The burden of proof that the client did not use the contractor’s documents shall be on the client.
11.) Warranty and damage claims
a) Warranty claims are subject to the following prerequisites, whereby the complete documentation of compliance with all prerequisites must be provided by the client and is a prerequisite for any claim:
i. Items purchased must be operated or used in accordance with any operating and maintenance instructions supplied
ii. Purchased items may only be operated or used within the range of a possibly recommended field of application
iii. Raw materials used must comply with the given specification
iv. Purchased items must be operated or used and processed by specialist personnel trained by the contractor
b) Notifications of possible warranty cases must be received by the Contractor in writing within 8 days of discovery by the Contractor – in any case no later than 14 days after acceptance of the goods or services, otherwise they will not be accepted. The notification must state the defective goods, the defects concerned and the circumstances under which the defects occurred.
(c) Expenses incurred as a result of complaints or disputes which are unfounded or in breach of the provisions of the contract shall be reimbursed to the supplier.
d) Representatives of Contractor shall have the right to enter or inspect the Purchased Goods at any time during the warranty period for the purpose of control or inspection.
e) The customer must be informed or notified in advance. Within the framework of the warranty, the contractor is obliged, at his own discretion, to replace defective components or purchased items with a non-defective part, product of the same quality or to credit the customer with an amount corresponding to the price reduction.
f) The replaced parts, products become the property of the contractor.
g) Any further claims of the customer or third parties, especially claims for compensation for indirect or subsequent damages of any nature, are excluded, unless the damage was caused intentionally by the contractor.
h) Excluded from the warranty are all costs and services resulting from any maintenance and repair work due to wear and tear as well as force majeure or damage by third parties (vandalism, official measures, etc.).
i) The contractor must perform his services with the care expected of him as a professional.
12.) Risks during Performance of Services
a) Generally, all risks related to the ground on which the objects of purchase are installed (geology, stability, presence of toxic material, war remnants, household waste, etc.) are incumbent on the customer and shall be borne by the customer.
b) It is also the responsibility of the Customer to provide for the necessary machinery and personnel during the assembly or processing phase of the purchased items, to ensure free access, to secure the site and the installation against theft, to coordinate the companies present on the site, to monitor the installation at night and on a daily basis and to place signs indicating the respective responsibilities in accordance with the law.
c) With the introduction of the purchased goods or their components into the construction site, the customer shall bear the risk of complete or partial loss of the purchased goods or their components, irrespective of the agreed retention of title.
d) The customer shall protect the delivered goods / delivered components against theft, vandalism and damage by external influences (e.g. weather) or, if necessary, insure them, provided that no insurance cover exists yet. The client is liable for any damage caused by this.
e) If dispatch is delayed at the request of the contractor or if the goods are not accepted for reasons for which the contractor is not responsible, the risk shall pass to the customer upon notification of readiness for dispatch. The costs incurred by storage, at least 5 % of the value of the goods per month, shall be borne by the customer.
13.) Liability and Exclusion of liability
a) The contractor is liable for the correctness of his calculations / interpretations as well as for the functionality of his equipment.
b) The total liability of the contractor from or in connection with the contract to be concluded in each case, regardless of the legal grounds, is limited to 10% of the offer price.
c) The contractor shall in no case and for whatever legal reason be liable for compensation for financial loss, indirect or consequential damage, in particular for loss of use, loss of production, plant downtime, capital and operating costs, loss of profit etc.
d) Something else applies only if intent can be proven to the contractor.
e) The afore-mentioned limitation of liability shall only be applicable to the legal relationship between the contractor and the client. Insurance law regulations are not affected thereof.
14.) Withdrawal from the contract
a) Withdrawal from the contract is generally not permissible.
b) In case of default of the contractor concerning a service, the client shall only be entitled to withdraw from the contract after having set an adequate grace period; the grace period shall be set by registered letter.
c) In case of default by the customer in a partial performance or a convened cooperation activity, which makes the execution of the order by the contractor impossible or considerably hinders it, the contractor is entitled to withdraw from the contract after a written warning and setting a deadline of 14 days by registered letter.
d) The contractor is entitled to withdraw from the contract if the customer or a third party files for insolvency proceedings.
e) If the contractor is entitled to withdraw from the contract, the contractor shall retain the claim to the entire agreed fee / the entire agreed price, as well as in the event of unjustified withdrawal by the customer. Furthermore, §1168 ABGB (Austrian Civil Code) shall apply; in the event of justified withdrawal by the customer, the customer shall in any case pay for the services / deliveries provided by the contractor.
15.) Choice of law, place of jurisdiction
a) Austrian law shall exclusively be applicable on contracts between the customer and contractor.
b) For all disputes, the jurisdiction of the court at the seat of the contractor having subject-matter jurisdiction shall be convened.