General terms and conditions of the company elicon – GmbH Ghegaweg 16, AT-9400 WOLFSBERG As of January 2016

 

1.      Application

1.1.       These general terms and conditions shall apply between us (elicon - GmbH) and natural and legal persons (in brief customer) for the objective transaction, as well as towards business customers, and for all future transactions, even if on a case-by-case basis it is not expressly referred to, especially in the case of future supplemental or consequential orders.

1.2.       Towards business customers, the most current version of the terms and conditions at the time of the contract conclusion applies, available on our homepage, and also transmitted to the customer.

1.3.       We contract exclusively on basis of our terms and conditions.

1.4.       Business conditions of the customer, or changes, or rather complements to our terms and conditions require our explicit consent – towards business customers in written form – in order to be applied.

1.5.                 Business conditions of the customer are not even accepted if we did not object to them explicitly upon receipt.

 

2.   Offer/Conclusion of contract

2.1.       Our offers are not binding.

2.2.       Confirmations, assurances and guarantees on our part, or agreements differing from these terms and conditions in connection with the contract conclusion, shall not be binding towards business customers unless confirmed by us in writing.

2.3.       Information headed in catalogues, price lists, brochures, advertisements on exhibition stands, circular letters, marketing mailers, or any other kind of media (information material) about our products and services which are not attributable to us, are to be notified to us by the customer – to the extent the customer bases his decision to order on them. In this case, we are able to take position on their correctness. If the customer violates this obligation, such information is not binding unless it has been expressly declared to be part of the agreement – towards business customers in written form.

2.4.                 Cost estimates are provided without guarantee, and they shall be subject to payment. Consumers will be informed about the cost obligation before the preparation of the cost estimate. In case a commission takes place, including several services included in the cost estimate, the payment for the cost estimate is credited to the objective invoice.

 

3.   Prices

3.1.                 Prices indicated, as a rule, are not to be understood as a lump sum price.

3.2.                 Claim on adequate compensation will be demanded for services ordered by the client, which are not covered in the initial order.

3.3.                 Prices indicated shall be understood to be the agreed prices plus applicable statutory Value Added Tax, and ex stock. Costs for packaging, transport, loading and shipping, as well as customs and insurance, shall be incurred by the business customer. Consumers as customers only get charged with these costs if this was concluded as subject to an individual agreement. Only upon express agreement we are obliged to take back packaging.

3.4.                 Correct and environmentally compatible disposal of waste materials have to be arranged by the customer. If we get instructed to do so separately, the customer will have to pay the costs additionally and appropriately to the agreed extent, for lack of financial arrangement.

3.5.                 In case a delivery, including parking possibilities within a distance of a maximum of 25km, is not ensured by the customer, we shall be rewarded with an extra charge of 0,4€ per initiated kilometre due to the additional expense. Furthermore, a fee surcharge of 19,50€ per floor that needs to be overcome, becomes due if there is no usable lift for the transport of all contractual services available.

3.6.       We shall be entitled, as well as obligated at the request of the customer, to adapt the contractually agreed compensations in the event of changes to the extent of at least 12 % since the contract conclusion regarding (a) the labour costs by law, collective agreements, company agreements or (b) other cost factors, like material costs, necessary for the performance of service, following recommendations by parity commissions, or changes to the national, respectively global market prices, for resources, changes to relevant exchange rates, etc. The adjustment will be made to the extent, to which the actual production costs at the time of the contract conclusion change compared with the ones at the time of the actual service performance, provided that we are not in default.

3.7.       In case of continuing obligation, the remuneration will be indexed and arranged based on the consumer price index 2010, and therefore the remunerations will be adapted. The month of the contract conclusion will be taken as a basis.

3.8.                 In the event of change of the costs, there will be an adaption of the remuneration for consumers as customers according to point 3.5, as well as in the case of continuing obligation according to point 3.6 only for individual contractual negotiations, if the service shall be performed within two months after the contract conclusion.

3.9.       Routed cables shaped in an arch will be measured along the exterior side. Shaped pieces and installations will be measured respective the tube dimensions, but they will be charged separately. Interruptions up to a maximum of 1 metre will remain unconsidered.

3.10.   If the billing is made according to measuring, and it was agreed that there will be a common determination of the measurements, the customer will have to prove that the determined measurements were taken correctly, in case of absence, even despite being invited on time.

 

4.   Provided goods (supplies)

4.1.                 If devices or other materials are provided by the costumer, we have the right to charge the customer with a
surcharge of 15 % of the value of the provided devices, respectively the material.

4.2.       Such provisions of the costumer are not subject to warranty. The customer is responsible for the quality and the availability of the provisions.

 

5.   Payment

5.1.       One third of the remuneration will be due at the time of the contract conclusion, one third at the time of the beginning of performance and the rest after completion of service.

5.2.       The entitlement to a discount deduction requires an explicit agreement – towards business customers in written form.

5.3.       Payment dedications on transfer vouchers, carried out by the customer, are not binding for us.

5.4.       According to  § 456 UGB (Austrian Corporate Code), we are entitled to charge companies as customers at 9,2 % points above the base interest rate, in the event of indebted delay of payment. Consumers are charged with an interest rate of 4 %.

5.5.       The seller reserves the right to claim damages for the enforcement of a further delay, towards consumers as costumers only if this is individually negotiated.

5.6.       In case the customer is in delay of payment in the frame of other existing contractual relations with us, we are entitled to suspend fulfilment of our obligation out of this agreement until the customer has performed.

5.7.       We are then entitled to accelerate maturity of all claims for services already rendered within the current business connection with the customer. This applies to consumers as customers only if an outstanding payment has been due for six weeks and we have sent a reminder to the customer without success, threatening with this consequence by giving him a grace period of at least two weeks.

5.8.       The customer only has the right to an authorization to offset if counterclaims were legally determined, or acknowledged by us. Consumers as costumers even have the right to an authorization to offset if counterclaims are legally connected to the payment liability of the costumer, as well as in the event of insolvency on our part.

5.9.       In case of exceeding the payment deadline, granted price reductions (discounts, allowances, etc.) cease to exist and will be invoiced.

5.10.   In case of default of payment, the customer shall be obligated to compensate all adequate costs necessary for collection (dunning expenses, collection expenses, lawyer’s fees, etc.). Particularly, in case of indebted default of payment, the customer shall be obligated to pay dunning expenses in the amount of € 15 per dunning, as long as these are in a reasonable proportion to the account presented.

 

6.   Credit assessment

6.1.       The customer expressly declares to agree that his data, solely for the purpose of protection of creditors, may be communicated to the officially privileged creditor protection associations Alpenländischer Kreditorenverband (AKV), Österreichischer Verband Creditreform (ÖVC), Insolvenzschutzverband für Arbeitnehmer oder Arbeitnehmerinnen (ISA) and Kreditschutzverband von 1870(KSV).

 

7.   Customer’s obligation to cooperate

7.1.       Our duty of performance of service only begins from the moment when the customer met the constructional, technical and legal requirements for the performance, which were outlined in the contract or part of the information distributed to the customer before the contract conclusion, or which the customer should have constructive knowledge of, based on his professional knowledge or experience.

7.2.       More particularly, before the start of performance of the service, the customer shall provide without request all necessary information regarding the position of hidden electricity conduits, gas and water pipes, or of any similar equipment, escape routes, other obstacles of constructional type, other potential causes of disruption, sources of danger, as well as the necessary statistic data and possible planned changes thereto.

7.3.       Details of the necessary information regarding the order can be obtained from us.

7.4.       In case the customer does not comply with his obligation to co-operate in correcting defects, our performance is not defective – exclusively regarding the not fully given efficiency as a result of incorrect customer instructions.

7.5.       The customer is obligated to pay for the necessary permits of third parties, as well as notifications and permits by administrative authorities (e.g. registration of electricity purchase). We refer to these in the scope of the contract conclusion, unless the costumer has resigned from it, or the business customer shall dispose over this kind of knowledge due to his education or experience.

7.6.       Energy and water quantity necessary for the performance of service, including the trial operation, shall be provided and paid by the customer.

7.7.       Furthermore, the customer is liable for the technically perfect and operational state of technical equipment, like for instance supply lines, wiring, networks, and the like, and the compatibility with facilities or objects of purchase which shall be provided by us.

7.8.       We shall be entitled, but not obligated, to check such installations for separate consideration.

7.9.       The customer shall be obligated to provide, free of charge, lockable rooms for the residence of the workers, as well as the storage of tools and materials, during the time of the performance of service.

 

8.   Performance of service

8.1.       We shall only be obligated to consider subsequent wishes of change or extension on part of the costumer if they are essential for technical reasons, in order to meet the purpose of the contract. 

8.2.       Minor justified substantial modifications of our implementation of works are deemed to be permitted in advance, if reasonable for the business customer. Towards consumers, this right only applies if it is negotiated on a case-by-case basis.

8.3.       Should, after the placement of the order, for whatever reason, modifications or amendments of the order occur, the supply and work period is extended for an adequate period of time.

8.4.       If the customer wishes a prompt performance of services after the contract conclusion, this means a contract modification. Thus extra hours may be necessary and/or additional costs may rise due to acceleration in the material procurement, and the remuneration rises in relation to the required additional expense.

8.5.       Self-justifying partial deliveries and services (e.g. plant size, construction progress, etc.) are permitted and they can be charged individually.

 

9.   Performance deadlines and dates

9.1.       Deadlines and appointments shall be postponed due to force majeure, strike, delay of our suppliers that we could not have foreseen and for which we are not responsible, and similar reasons which are beyond our control (e.g. bad weather) for as much time as the according event lasts. The customer’s right to resign from the contract in cases of delay which would make it unreasonable for the party to continuously be bound to the contract, remains untouched.

9.2.       If the beginning of the performance of services, or the performance, is delayed or interrupted due to circumstances for which the customer is responsible, especially because of negligence of the obligation to co-operate according to point 7 of these terms and conditions, performance deadlines shall be extended and agreed completion schedules shall be prolonged correspondingly. We have the right to charge 6 % of the invoice amount per started month of the performance delay, for the therefore necessary storage of materials, tools and the like in our company. The customer remains obligated to pay, and his respective duties of accepting the delivery shall not be affected.

9.3.       For business customers, delivery and completion dates are only binding if their fulfilment was confirmed in writing.

9.4.       In case of delay of the performance of contract on our part, the customer has the right to withdraw from the contract, after setting an appropriate period of grace. The period of grace has to be set in written form (by business customers as a registered letter), at the same time as threatening to withdraw from the contract.

 

10.         Reference to limitation of the scope of service

10.1.             In the scope of installation and maintenance work, damages can occur (a) on already existing pipes, cables and devices, as a result of unforeseeable conditions (especially constructional) or material defects of the available inventory (b) during masonry on concrete that is not attached. We only take account for such damages if they were culpably caused by us.

10.2.   With makeshift repairs, a very limited durability according to the circumstances must be taken into account.

10.3.   In case of a makeshift repair, the customer has to arrange a professional repair immediately.

 

11.         Risk assumption

11.1.   For the transfer of risk during the delivery of the goods to the user, § 7b Consumer Protection Act applies.

11.2.   The business customer runs the risk that he has to deliver, or hand over to a carrier, the object of purchase, material or work, as soon as it is available in our plant or warehouse.

11.3.   The business customer shall take out proper insurance against this risk. We undertake to take out transport insurance upon written request of the customer at his expense. The customer agrees to every customary form of shipment.

 

12.         Default of acceptance

12.1.   In the event that the customer shall fall behind in default of acceptance for longer than two weeks (refusal of acceptance, default with advance performances or others), and if the customer, despite an adequate extension, has failed to eliminate the circumstances for which he is accountable, and which are the reason for the delay or prevention of the performance of services, we are allowed to use the equipment and materials specified for the performance of services in other ways, provided that in the event of a continuation of the performance, we restock them within a period according to the respective circumstances.

12.2.   In the event that the customer shall fall behind in default of acceptance, we also have the right to store the goods, in case of insistence of contract performance, for which we shall be entitled to a storage fee in the amount of 150 €.

12.3.   Our right to charge the remuneration for the rendered performance and to withdraw from the contract after an adequate grace period, remains thereby unaffected.

12.4.   Any assertion of higher damages is permitted. Towards users, this right only applies if it is negotiated on a case-by-case basis.

 

13.         Reservation of title

13.1.   The goods delivered, installed and handed over otherwise, remain our property up until the complete payment.

13.2.   A resale is only permitted if we were informed about it in time, stating name and address of the buyer, and if we agree to the sale.

13.3.   In the event of our approval, the purchase price claim of the business customer is assigned to us.

13.4.   In case the customer shall fall behind in default in payment, after having granted an adequate extension of time, we have the right to demand the return of the reserved goods. Towards users as customers, we are only entitled to exercise that right if at least one outstanding performance is due for at least six weeks, and if we have, by threatening with this legal consequence and by granting a grace period, sent a reminder without success for at least two weeks.

13.5.   The customer is obligated to inform us immediately about his estate before the commencement of bancruptcy or the attachment of our reserved goods.

13.6.   We are entitled to access the location of the reserved goods, as far as acceptable for the customer, for the assertion of our reservation of title; this after reasonable advance notice.

13.7.   The customer shall pay the adequate costs for the necessary and appropriate prosecution.

13.8.   Claiming reservation of title represents a withdrawal from contract only if this has been expressly declared.

13.9.   We are permitted to use recovered goods that are subject to retention of title, privately and in the best way possible, towards business customers.

13.10.         Up until the complete payment of all our claims, the performance/purchase object cannot be pledged, assigned as security or otherwise encumbered with rights of third parties. In the event of attachment or other claim, the customer is obliged to point out our property night and to inform us immediately.

 

 

 

14.         Property rights of third parties

14.1.   If the customer produces intellectual creation or documents, and if concerning these creations, property rights are claimed by a third party, we are entitled to stop the production of the delivery object at the customer’s risk up until the clarification of any rights belonging to third parties, except the claim is obviously not justified.

14.2.   The customer will indemnify us against any and all claims concerning this matter.

14.3.   The same way we may claim compensation from the customer for necessary and useful costs paid by us.

14.4.             We have the right to request a suitable advance on costs to cover all process costs from the business customer.

 

15.         Our intellectual property

15.1.   Maps, sketches, cost estimates or any other kind of documents which are provided by us, or which were produced due to our contribution, remain our intellectual property.

15.2.   The application of such documents beyond the intended use, especially transfer, reproduction, publication and provision, including even the reproduction in parts, requires our express agreement.

15.3.   The customer undertakes to absolute confidentiality towards third parties concerning the knowledge obtained from these business relations.

 

16.         Warranty

16.1.   The clauses about the legal warranty apply.

16.2.Towards business customers, the warranty period for our services lasts for year from the delivery.

16.3.For lack of deviating agreement (e.g. formal acceptance), the time of delivery is the time of completion, at the latest when the customer adopted the service into his authority to dispose, or denied the acceptance without giving reasons.

16.4.If a common delivery is planned and the customer does not show up for the delivery date that he has been communicated, the acceptance is considered taken place on this day.

16.5.Corrections of a defect claimed by the customer do not represent the acknowledgement of this defect claimed by the customer.

16.6.As regards the corrective action, we shall be given at least two attempts by the business customer.

16.7.We can deny a request for transformation through improvement or adequate price reduction, as long as it does not involve a significant and non-recoverable defect.

16.8.If the defects claimed by the customer are unjustified, the customer is obligated to refund expenses for the determination of absence of defects or debugging, which may have resulted for us.

16.9.The business customer must prove that the defect was already present at the time of delivery.

16.10.          Defects on the delivery goods which the business customer may have noticed in the normal course of business, after delivery by investigating, or should have noticed, have to be reported immediately in written form, at the latest 14 days after delivery.

16.11.         A possible use or processing of the defect performance object, which may cause a further damage or complicates or prevents an enquiry of the cause, has to be stopped by the customer immediately, as far as it is not unreasonable.

16.12.          Should notice of defect not be given on time, the goods shall be considered approved.

16.13.         The defect delivery or samples of it have to be returned to us by the business customer, provided that is economically acceptable. Transport and travel expenses emerging in connection with the corrective action shall be paid by the customer.

16.14.          The customer shall have the obligation to facilitate an immediate detection of defects through us.

16.15.          The warranty shall not apply if the technical facilities of the customer, as for instance supplies, cabling and similar, are not technically faultless and operational, or not compatible with the delivered objects, as far as this circumstance causes the defect.

16.16.         The fact that works are not fully qualified for use as agreed, does not constitute a defect if it is caused exclusively by the fact that the effective situation is deviating from the information we had at the time of performance, because the customer has not fulfilled his cooperation obligation according to point 7.

 

17.         Liability

17.1.   We are liable in case of property damages for violation of contractual or pre-contractual obligations, primarily for impossibility of performance, delay etc., only in case of premeditation or gross negligence.

17.2.   Towards business customers, the liability shall be limited to the liability limit of a liability insurance, at most taken out by us.

17.3.   This limitation also applies to damages to items we have accepted for treatment. For consumers this only applies if this was negotiated in individual contracts.

17.4.   Claims for damages of business customers shall be risen to a claim within two years in any other case.

17.5.   The liability exclusion equally includes claims against our employees, representatives and agents due to getting harmed by these – without reference to a contract between them and the customer.

17.6.   Our liability is excluded for damages through improper handling or storage, overuse, disregard of user and installation manuals, defective assembly, operation, service, maintenance by the customer or third parties not having been authorized by us, or natural wear and tear, to the extent such cause caused the damage. The liability exclusion also applies to the failure of necessary service, provided we have not assumed the obligation contractually to be responsible for the service.

17.7.   If, and as far as the customer can make use of insurance benefits through an indemnity insurance (e.g. liability insurance, hull insurance, transport, fire, business interruption, and others) taken out by himself or in his favour, for damages which we are liable for, the customer undertakes to claim the insurance benefit and our liability is limited to the disadvantages which the customer has to deal with as a result of the insurance claim (e.g. higher insurance premium).

 

18.         Severability clause

18.1. Should individual parts of these general terms and conditions be legally invalid, this does not affect the validity of the remaining parts.

18.2. We, and the business customer as well, already make the commitment that – based on the good faith of the contracting parties – we negotiate a substitute regulation that approximates the economic result of the ineffective clause as closely as possible.

 

19.         General information

19.1.   Austrian law applies.

19.2.   The UN sales law is excluded.

19.3.   Place of fulfilment is the company headquarters (AT-9400 Wolfsberg, Ghegaweg 16).

19.4.   The court of jurisdiction for all disputes arising out of this contractual relationship or future contracts between us and the business customer, shall be the locally competent court for our company headquarters. The court of jurisdiction for consumers, provided he has his place of residence nationally, is the court where the consumer has his normal domicile or place of employment.

 

 

Comments:

The present terms and conditions were created corresponding to the current legislation. It is pointed out that, despite thorough processing, all information is given without guarantee and liability of the author or publisher. All linguistic formulations in the masculine form are equally valid for both genders.