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Terms and conditions of sale, delivery and licensing
STB Steuerungstechnik Beck GmbH
Telephone: +43 5512 26444
1.1. These Terms and Conditions (in the following referred to as Terms) are designed to regulate the legal transactions between businesses. If, in exceptional cases, they are used to regulate legal transactions with consumers in the sense of the Consumer Protection Act, they shall apply only to the extent to which they do not contradict mandatory provisions.
1.2. These Terms shall apply to all legal transactions and relations between the contractor and the customer, not just to the first transaction of this kind. It is thus expressly agreed that these Terms shall also apply to all follow-on contracts, additional contracts and any other business.
1.3. Purchasing conditions or any other terms and conditions of the customer shall not apply and are herewith expressly excluded. The contractor expressly states that all contracts are based on these Terms and Conditions. If, in exceptional cases, it is agreed in writing that a customer’s Terms and Conditions shall apply, this shall hold true only to the extent to which the customer’s terms do not conflict with these Terms and Conditions. Non-conflicting provisions in the Terms and Conditions shall exist side by side.
1.4. The customer confirms that he was given the opportunity to take note of the content of these Terms prior to concluding the contract and that he agrees with the provisions set out within these Terms.
1.5. Any amendments to and modifications of these Terms shall be set out in writing to be legally effective, including an agreement to waive this stipulation. It is herewith noted that no ancillary agreements exist.
2. Quotes; conclusion of contracts
2.1. All quotes provided by the contractor are non-binding and without obligation.
2.2. The contractor shall accept offers or orders made by the customer by means of a written order confirmation or by delivering the ordered product service.
2.3. All information on the contractor’s products and services contained in catalogues, price lists, brochures, company information material, leaflets, displays at trade fairs, circulars, advertising material or other media are non-binding, unless they are expressly and in writing declared to be part of the content of a contract.
2.4. All quotes provided by the contractor are given without guarantee for completeness and correctness.
3. Delivery and service periods
3.1. All delivery and service periods are non-binding, unless they were expressly and in writing agreed to be binding in the order confirmation or the individual contract.
3.2. If, for whatever reasons, the project scope is amended or expanded after the contract has been concluded, the delivery/service period shall be extended accordingly.
3.3. If no other agreements exist, the delivery period shall commence no earlier than the latest of the following points in time:
a) Date of the order confirmation
b) Date of fulfilment of all technical, commercial or other prerequisites on the part of the customer
c) Date on which the contractor receives the agreed down payment or security deposit.
3.4. If the contractor is prevented from fulfilling his obligations by circumstances that are unforeseeable or beyond his control, such as business disruption, government measures and interventions, energy supply problems, loss of a supplier that is difficult to replace, strike, obstruction of transport routes, customs delays or acts of force majeure, the delivery/service period shall be extended accordingly, irrelevant of whether such circumstances affect the contractor or one of his suppliers or sub-contractors.
3.5. If fulfilment of the contract becomes impossible for reasons beyond the control of the contractor, the contractor shall be released from his contractual obligations.
3.6. The contractor shall reserve the right to provide partial/early deliveries and to invoice these accordingly. If on-call delivery was agreed, the service/product shall be considered collected no later than six months from the date of the order.
4.1. If a contract is concluded without a prior offer or if services are rendered that are not contained expressly in the contract, the contractor shall charge the sum that corresponds to his price list or the usual payment charged for such services.
4.2. The contractor shall reserve the right to charge a sum higher than the agreed payment or purchasing price if the basis of the calculation made at the time the contract was awarded has changed after the conclusion of the contract, for instance prices of raw materials, exchange rates or labour costs.
4.3. All prices and charges include the applicable VAT rate and are ex warehouse. Costs for packaging, transport, loading and postage as well as customs and insurance shall be paid for by the customer. Packaging can only be returned if this has been expressly agreed beforehand.
4.4. Unless agreed otherwise, half of the payment/purchasing price shall be rendered upon receipt of the order confirmation, and the remaining half upon delivery or holding of goods for collection or upon receipt of the invoice, clear of expenses and deductions.
4.5. Payments shall be deemed effected once the contractor is able to dispose of the money. Payment references provided by the customer, for instance on payment slips, shall not be considered binding.
4.6. In case of late payment, an interest of __ % p.a. shall apply. If the contractor draws on interest that exceeds this rate, he shall reserve the right to charge this interest from the customer. Any appropriate and necessary costs resulting from the late payment, for instance costs for reminders, debt collection, storage costs and judicial or extra-judicial legal fees shall be reimbursed by the customer.
4.7. Any special terms that were agreed on upon conclusion of the contract, such as cash discounts or rebates, are subject to timely payment of the full amount. In case of late payment, even of a single instalment, the contractor shall reserve the right to revoke these special terms and invoice the customer for the difference.
4.8. Any right of retention or pleas of non-performance on the part of the customer in case of alleged defects shall be excluded. Any off-setting by means of counterclaims or alleged claims to price reductions shall only be valid if such claims have been established as legally binding and if this is not disputed by the contractor.
4.9. If the customer is late with a payment resulting from the contractual relationship or any other payment obligation towards the contractor, the contractor shall, without prejudice to any other rights, reserve the right to delay his obligation to perform until the customer has made the outstanding payment and/or to claim an appropriate extension of the delivery period, to demand immediate payment of all outstanding claims from this or other legal transactions and to collect any items already delivered, without releasing the customer from his payment obligations. Such actions shall constitute a withdrawal from the contract on the part of the contractor only if he has expressly declared this to be the case.
4.10. If the customer’s financial circumstances should deteriorate, the contractor shall have the right to demand immediate payment of the agreed fee or purchasing price as well as to execute the contract only against advance payment.
4.11. If a periodical fee is agreed upon, for instance for servicing or maintenance plans, this fee shall be payable annually at the start of a calendar year. If the contract commences or terminates during the year, this fee must be paid on a pro-rata basis. The fee is value-protected according to the Consumer Price Index 1996, with the month in which the servicing or maintenance contract was concluded as the basis. If the Consumer Price Index 1996 is no longer published, it shall be replaced by its successor or the one most closely resembling it. The contractor shall furthermore have the right to adjust periodical fees for the reasons specified in 4.2.
4.12. Costs arising from transportation, per diems and per noctems shall be invoiced separately with regard to periodical fees. Travel time shall be considered working time.
5. Risk of loss and shipment
5.1. The risk shall pass to the customer as soon as the contractor holds the purchased item/work ready for collection at the production site or warehouse, independent of whether the customer will hand over the items to a freighter or shipping company. Shipment, loading and unloading as well as transportation shall always be at the risk of the customer.
5.2. The customer approves of any appropriate means of shipment. Transport insurance shall only be concluded upon written confirmation of the customer.
5.3. The contractor shall reserve the right to collect the packaging and shipment costs as well as the fee or purchasing price from the customer upon delivery if the financial circumstances of the contractor deteriorate or a credit limit previously agreed upon with the customer has been exceeded.
5.4. The place of execution shall be the plant of the contractor.
6. Reservation of title and right of retention
6.1. All goods and manufactured products shall remain the property of the contractor until fully paid for by the customer, even if the items to be delivered or manufactured are sold, modified, adapted, processed or incorporated with other goods.
6.2. Until all of the contractor’s claims have been settled in full, the object of services/of purchase must not be pledged or assigned as a security or encumbered with any other third-party rights. If the goods have been attached or subject to any other recourse, the customer must point out the reservation of title of the contractor and notify the latter immediately.
6.3. The customer herewith assigns all his claims and rights arising from the sale, processing, incorporation or other usage of our goods and products to the contractor for payment. The customer shall, until the fee or purchasing price has been paid in full, make a note of this assignment in his books and on his invoices and to draw the attention of his creditors to this assignment. Upon request, the customer must make available to the contractor all documents and information required to assert these claims.
6.4. To safeguard his claims and to safeguard the claims from other legal transactions, the contractor shall have the right to retain goods and products until all open claims from the business relationship have been settled in full.
7. Obligations of the customer
7.1. During installation works to be carried out by the contractor, the customer must ensure that work can be embarked upon straight after the arrival of the contractor’s installation staff.
7.2. The contractor is liable for ensuring that all the technical prerequisites for the plant to be manufactured or the object of purchase are fulfilled and that all technical equipment such as feed lines, cables, networks, etc. is in a fault-free, operable condition and compatible with the machinery to be assembled or the objects of purchase provided by the contractor. The contractor shall have the right to check these facilities for a separate fee but is not obligated to do so.
7.3. Inspection, warning or information requirements regarding any documents, information or instructions provided by the customers shall not apply. Any liability with regard to such requirements on the part of the contractor is thus excluded.
7.4. The commission is placed independent of any required official authorisations and licences that the customer must obtain.
7.5. The customer shall have no right to assign claims and rights from the contractual relationship to others without the prior written approval of the contractor.
8.1. The warranty period is limited to six months and shall commence upon the transfer of risk as set out in these Terms and Conditions. This shall also apply to deliveries and services that are directly attached to a building or the ground.
8.2. The warranty is excluded if technical equipment such as feed lines, cables, networks, etc. is not in a fault-free, operable condition and not compatible with the machinery to be assembled or the objects of purchase provided by the contractor.
8.3. No warranty shall apply to defects that result from improper or excessive use or from non-observance of operating or installation instructions issued by the contractor; or if the object of delivery was based on the customer’s designs and the defect results from these designs/drawings; in case of improper installation and/or commissioning on the part of the customer or a third party; to defects resulting from natural wear and tear, transportation damage, improper storage, operating conditions that interfere with product functionality (e.g. insufficient power supply); to defects resulting from chemical, electro-chemical or electrical influences or from inadequate or missed maintenance activities.
8.4. The contractor shall be notified of any defects and complaints in writing, including possible causes, and immediately. If this provision is not complied with, all warranty claims shall become null and void. Notifications of defects or complaints made orally, over the telephone or not immediately after their manifestation shall not be taken into account. In cases where a joint acceptance procedure has been agreed with, any notification of defects that were noticeable during the acceptance and handover procedure shall be excluded.
8.5. Notification of defects and complaints shall be addressed to the headquarters of the contractor and shall include a precise description of the defect. In cases where this is feasible, the customer shall hand over the defective goods or products.
8.6. The contractor reserves the right to perform any investigation or have such an investigation performed that he deems necessary, even if such an investigation renders the goods or deliverables unusable. In cases where such an investigation results in the conclusion that the contractor has not committed an error, the customer shall bear the reasonable and appropriate costs of the investigation.
8.7. In cases where the deliverables are produced on the basis of specifications, drawings, plans, models or other specifications compiled by the customer, the liability of the contractor shall be limited to the execution of the deliverables according to these instructions.
8.8. If the customer performs modifications of the supplied goods or deliverables without the prior written agreement of the contractor, the contractor’s warranty obligation shall become null and void.
8.9. When asserting secondary warranty claims, the contractor shall reserve the right to avert a cancellation of the contract by means of a price reduction, as long as the defect is not substantial and irreparable.
8.10. In addition, the customer shall also prove the existence of any defect that exists at the time of delivery within the first six months after delivery.
8.11. Any costs which arise from the reparation of defects, such as transport or shipping, loading, unloading as well as transport costs shall be paid by the customer. Upon the contractor’s request, the customer shall provide the required staff free of charge.
9. Liability and product liability
9.1. The contractor shall only be liable for intentional damages or damages resulting from gross negligence. Liability for slight negligence shall be excluded. Any faults on the part of the contractor must be proved by the customer.
9.2. Liability for indirect damage, consequential damage, lost profit, property loss, damages resulting from business interruption, loss of data, loss of interest and damages through third-party claims against the customer shall be excluded in all cases.
9.3. Any liability on the part of the contractor shall be limited to the extent of the agreed fee or the purchase price for the respective order. The contractor shall only accept contracts subject to this liability limitation. Any liability on the part of the contractor that exceeds this limit shall be expressly excluded. If the total damages exceed this maximum limit, the claims for compensation of the individual claimants shall be reduced to the extent that prevents them from surpassing the total limit.
9.4. The customer shall inform the contractor of any detected flaws in the goods or products immediately. Failure to do so shall render all claims null and void. Claims for damages shall be filed with a court within a six-month period; otherwise, they shall be null and void.
9.5. Initially, the customer shall only be able to claim improvement or replacement of the good/product. Only if both options prove to be impossible or demand an unreasonable effort on the part of the contractor shall the customer have the right to demand immediate financial compensation.
9.6. In the event that the customer fails to comply with the requirements for installation, commissioning, and usage, or with provisions for usage issued by the respective authorities, all liability on the part of the contractor shall be excluded. The customer is obliged to ensure that the instruction manuals of the delivered goods or products are followed by all users. In particular, the customer shall provide appropriate training of his staff orany other person dealing with the good or product.
9.7. The obligation to indemnify damage to property according to the Product Liability Act and claims to product liability which arise from other regulations are excluded, as far as this is in accordance with the law. The ordering party is obliged to transfer the disclaimer for product liability claims to his possible contract partners. A claim to damages of the customer against the contractor on the basis of the Product Liability Act law is excluded. The customer shall provide adequate insurance for product liability claims, and indemnify and hold the contractor harmless with respect to legal proceedings and claim.
10. Premature termination of contract and error
10.1. If deliveries/services cannot be rendered for reasons for which the customer is responsible, or if the customer fails to fulfil a legal or contractual obligation towards the contractor, the contractor shall have the right to cancel the contract. In such an event, the customer shall compensate the contractor for all damages suffered and for all profits lost.
10.2. The customer shall abstain from appealing or adapting this contract in the event of error.
11. Industrial property rights
11.1. The customer shall be liable for ensuring that any design data, drawings, models or other specifications that are handed to the contractor to aid the production process do not violate any property rights of third parties. The customer shall indemnify and hold the contractor harmless in case of anyviolation of property rights.
11.2. Software, documentation necessary for production, such as drafts, sketches, and other technical documents, models, catalogues, brochures, figures, and the like remain the intellectual property of the contractor and are subject to copyright protection. Any reproduction, dissemination, imitation, modification, or other exploitation which has not been explicitly permitted, shall be illegal.
12.1. If software modules or computer programmes form part of the service or the product, the contractor grants the customer a non-transferable and non-exclusive right of use at the agreed place of usage, provided that all contractual conditions and documentation specifications (for instance the operation manual) are complied with.
12.2. Without the previous written consent of the contractor, the customer shall not be entitledto copy the software, modify it, forward it to third parties, or use it for other purposes than those expressly agreed upon. This provision applies in particular to the source code.
12.3. Warranty for the software shall be limited to the condition that the software complies with the specifications agreed upon in the contract, as long as the software has been installed according to the installation requirements and the valid conditions of usage. The customer shall not guarantee that the software is flawless and will work uninterruptedly or faultlessly. The occurrence of errors cannot be excluded.
12.4. The selection and specification of the software offered by the contractor is made by the customer, who shall take care that the software is compatible with the technical set-up of his place of usage. The customer shall be responsible for the usage of the software, and the results obtained with it.
12.5. For individually produced software, the performance features, special functions, hardware and software requirements, installation requirements, usage conditions and operation shall be exclusively drawn from the performance specification which is to be agreed upon by the parties in writing. Information necessary for the production of individual software shall be provided by the customer prior to the conclusion of the contract.
13. General Terms
13.1. If an individual provision of these Terms and Conditions is, or becomes, ineffective, the remainder of these Terms and Conditions shall remain unaffected. Ineffective provisions shall be replaced by the contracting parties with terms that come closest to the ineffective provision and that are customary in this industry.
13.2. Place of jurisdiction for all disputes arising out of this contract or future contracts concluded between the customer and the contractor shall be the locally competent court for the seat of the contractor. The contractor shall also be entitled to take action against the customer at the customer’s general place of jurisdiction.
13.3. The contracting parties agree on the application of Austrian Law. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded
13.4. The customer shall notify the contractor immediately and in writing of changes concerning his name, company, address, legal form, or any other relevant information.
Information correct as of 2 November 2013
STB Steuerungstechnik Beck GmbH