AVIBE works GmbH with the business address Franz-Kollmann-Straße 4, A-3300 Amstetten, registered in the Commercial Register of the Regional Court of St. Pölten at 543282w (hereinafter referred to as "AVIBEProducts").
1 Scope of application
- These General Terms and Conditions ("GTC
- [For software-related services, the Software Terms and Conditions published by the Professional Association of the Austrian Electrical and Electronics Industry shall apply with priority, for installation work the Installation Terms and Conditions of the Austrian Heavy Current and Light Current Industry or the Installation Terms and Conditions of the Austrian Electrical and Electronics Industry (current versions of these Terms and Conditions can be found at <feei.at>)].
- Upon the establishment of the contractual relationship pursuant to § 2 (1), the GTC shall be fully accepted by Customer and shall thereafter apply exclusively for the entire duration of the business relationship with AVIBE. Any (business) conditions of Customer shall not apply unless AVIBE accepts them in writing in an individual case.
- The General Terms and Conditions shall be directly binding exclusively between Customer and AVIBE. Claims of a customer on the basis of a contract in favour of third parties (§ 881 ABGB) or with a protective effect for third parties shall not be derived from these GTC either directly or indirectly, unless AVIBE expressly agrees to such a legal effect.
2 Conclusion of contract & contractual conditions
- A contractual relationship between Customer and AVIBE shall come into existence on the basis of a written, verbal or electronic order placed by Customer (order) and the subsequent order confirmation by AVIBE.
- AVIBE expressly reserves the right to check Customer's orders for their seriousness and quality and will, if necessary, issue a written, verbal or implied order confirmation.
- AVIBE shall be entitled to reject an order from the customer if:
- there are reasonable doubts concerning the identity, legal capacity or legal personality of the client or the power of representation of a person (natural or legal) acting on behalf of the client;
- there is reasonable suspicion of misuse/abuse of the products or other contractual services of AVIBE;
- other circumstances exist which would make the establishment of a contractual relationship unreasonable from AVIBE's point of view.
- Offers made by AVIBE are subject to change. The products and services presented or advertised in AVIBE's online offer, brochures or other advertising material shall not constitute binding offers.
- All documents, proposals, test programmes, source codes etc. in connection with the contractual provision of services by AVIBE shall be the intellectual property of AVIBE and may neither be reproduced nor made accessible to third parties. If no contract is concluded with Customer, these contractual items, documents, proposals, test programs etc. shall be returned or deleted and may not be used further.
- Customer shall be aware of the essential performance features of the contractual relationship underlying these General Terms and Conditions; Customer shall bear the risk that AVIBE's services do not meet its wishes and needs. Prior to conclusion of the contract, each customer shall obtain information from employees or vicarious agents of AVIBE (e.g. IBS AG) or competent third parties regarding the technical possibilities and conditions of use of products, the content of EDP-technical terms and symbols, quality requirements, format requirements or similar.
- Network failures, faults, maintenance work or other events for which AVIBE is not responsible may result in unavoidable interruptions in the provision of services. In such a case, AVIBE shall make a good faith effort to remedy faults and interruptions as quickly as technically and economically possible.
- All statements in printed matter, catalogues, advertisements, price lists and other information and advertising materials of AVIBE regarding technical data or product characteristics shall not serve as a basis for any claims of the Customer and shall only constitute a general description and identification of the services of AVIBE. A guarantee of quality shall only be assumed if it has been expressly designated and agreed as such.
- AVIBE shall be entitled to change, extend or restrict the content and scope of the contractual services at any time in a manner that is reasonable for the Customer, subject to prior notification in good time. AVIBE shall take such measures in particular if this is prompted by technical or legal circumstances or serves to secure contractual services (e.g. the functionality of measurement and sensor systems).
3 Specific obligations of the custome
- The customer undertakes to use delivered products in accordance with the purpose and the contract. In particular, Customer shall not use any software, data or (technical) equipment that could potentially impair the functionality of a product in any way whatsoever.
- Changes in system requirements within Customer's sphere of influence shall be notified to AVIBE in good time prior to performance. Delays and additional costs arising from the changes in the performance of the service shall be borne by Customer.
- Customer shall provide in good time and free of charge all documents, information and facilities from its sphere of influence required for the performance of the services owed by AVIBE and shall furthermore request in good time any cooperation or provision of services by third parties which are a prerequisite for the performance of the services by AVIBE.
- In the event that cooperation or provision services are not provided or requested by Customer in good time, the delivery or service dates shall be postponed accordingly and any frustrated expenses incurred by AVIBE as a result thereof shall be reimbursed by Customer.
- Customer shall notify AVIBE in writing without delay of any changes in its company name and legal form, address, billing address and bank details. If this notification of change is not made, documents shall be deemed to have been received if they were sent to the address or paying agent last notified by Customer.
- The delivery period shall commence on the latest of the following dates:
- Date of order confirmation;
- Date of fulfilment of all technical, commercial and other conditions incumbent upon Customer;
- Date on which AVIBE receives a deposit or security to be paid prior to delivery of the Products.
- Official approvals and any third-party approvals required for the execution of installations shall be obtained by Customer. If such approvals are not obtained in time, the delivery period shall be extended accordingly.
- AVIBE shall be entitled to make and invoice partial or advance deliveries. If delivery on call has been agreed, the product shall be deemed to have been called at the latest one year after the order.
- If unforeseeable circumstances or circumstances independent of the will of the parties occur, such as all cases of force majeure, which impede compliance with the agreed delivery period, the latter shall in any case be extended by the duration of such circumstances; these shall include in particular armed conflicts, official interventions and prohibitions, transport and customs clearance delays, transport damage, energy and raw material shortages, labour disputes and the failure of an essential supplier who is difficult to replace. These aforementioned circumstances shall also entitle the supplier to extend the delivery period if they occur at the supplier's premises.
- If a contractual penalty (Pönale) for delay in delivery was agreed between the parties at the time the agreement was concluded, this shall be paid in accordance with the following rule, whereby a deviation from this rule in individual points shall not affect its application in other respects.
- Any delay in performance that is demonstrably due to the sole fault of AVIBE shall entitle Customer to claim a contractual penalty of no more than 0.5% for each full week of delay, but no more than 5% in total, of the value of that part of the total delivery in question that cannot be used as a result of the untimely delivery of an essential part. The customer shall only be entitled to claim a contractual (delay) penalty if the customer has actually suffered damage in the amount claimed. Further claims of the customer under the title of (delivery) delay are excluded in any case.
5 Transfer of risk and place of performance
- Use and risk shall pass to Customer upon dispatch of the delivery ex works or ex warehouse, irrespective of the pricing agreed for the delivery (such as carriage paid, CIF, or similar). This shall also apply if the delivery is made as part of an assembly or if the transport is carried out or organised and managed by AVIBE.
- In the case of the provision of services, the place of performance shall be where the service is provided. The risk for a service or an agreed partial service shall pass to Customer upon its provision.
6 Copyright and use
- Unless otherwise agreed, the intellectual property and industrial property rights generated in the course of individual product manufacture and software development shall be and remain the exclusive and unrestricted property of AVIBE. Design documents such as plans, sketches and other technical documents, as well as samples, catalogues, brochures, illustrations and the like, shall always remain the intellectual property of AVIBE and shall be subject to the relevant statutory provisions with regard to reproduction, imitation, competition and the like.
- Customer shall indemnify and hold AVIBE harmless against any infringement of copyrights or other intellectual property rights of AVIBE or third parties.
- The prices shall be ex works or ex warehouse of AVIBE excluding VAT, packaging, loading, disassembly, return and proper recycling and disposal of products as well as waste electrical and electronic equipment for commercial purposes within the meaning of the Ordinance on Waste Electrical Equipment. If fees, taxes or other charges are levied in connection with the delivery, these shall be borne by the customer. If delivery with delivery (Schickschuld) has been agreed, this and any transport insurance requested by the customer shall be charged separately, but shall not include unloading and carrying. Packaging will only be taken back by express agreement.
- In the event of an order deviating from the total offer, AVIBE reserves the right to change the price accordingly.
- The prices shall be based on the costs at the time of the initial price quotation. Should the costs increase up to the time of delivery, AVIBE shall be entitled to adjust the prices accordingly.
- In the case of repair orders, the services identified by AVIBE as expedient shall be provided and charged on the basis of the expenditure incurred. This shall also apply to services and additional services whose expediency only becomes apparent during the execution of the order, whereby this shall not require any special notification to Customer.
- The customer shall be invoiced for the time and effort required for the preparation of repair quotations or for appraisals,
- All prices are in Euro excluding VAT and advertising charges. Any shipping costs will be charged extra and apply only to the present order.
8 Terms of payment
- Unless other terms of payment have been agreed in writing, 50% of the product price shall be due upon receipt of the order confirmation and 50% after installation of the product at the customer's premises. Irrespective of this, the value added tax included in the invoice must be paid in any case no later than 30 days after invoicing.
- In the case of partial offsetting, the corresponding partial payments are due upon receipt of the respective invoice. This shall also apply to offsetting amounts arising from subsequent deliveries or other agreements in excess of the original final amount, irrespective of the payment terms agreed for the main delivery.
- Remuneration claims are generally payable after receipt of the invoice on the due date stated in the invoice or, in the absence of a due date, within seven calendar days of receipt of the invoice by the customer. In the case of electronic invoice delivery, an invoice shall be deemed to have been received as soon as it has reached the customer's area of disposal and could be noticed (retrieved) by the customer. The invoice amount must be credited to the account specified in the invoice by the due date at the latest.
- Customer shall not be entitled to withhold or set off payments on account of warranty claims or other counterclaims. A payment shall be deemed to have been made on the day on which AVIBE can dispose of it. If the customer is in default with an agreed payment or other performance arising from this or other transactions, AVIBE shall be entitled, without prejudice to its other rights, to
- suspend performance of its own obligations until such payment or other performance has been effected and avail itself of a reasonable extension of the delivery period,
- call in all outstanding debts arising from this or other transactions and charge interest on such amounts from the respective due date at the rate of 1.25% per month plus VAT, unless AVIBE proves costs in excess thereof.
- In any case AVIBE shall be entitled to charge pre-litigation costs, in particular reminder fees and lawyer's fees. Any discounts or bonuses granted shall be conditional on full payment being made on time.
- AVIBE shall retain title to all products until full payment of the invoice amounts plus interest and costs.
- To secure the purchase price claim, Customer hereby assigns to AVIBE its claim from a resale of goods subject to retention of title, even if these have been processed, transformed or mixed. In the event of resale with deferral of the purchase price, Customer shall be entitled to dispose of the products subject to retention of title only on condition that it notifies the secondary purchaser of the assignment by way of security at the same time as the resale or notes the assignment in its business records. Upon request, Customer shall disclose to AVIBE the assigned claim together with its debtor and provide AVIBE with all information and documents required for its collection of the claim and notify the third-party debtor of the assignment. In the event of seizure or any other claim, Customer shall be obliged to point out AVIBE's right of ownership and to notify AVIBE without delay.
- Customer shall refrain from setting off any counterclaims against claims for payment by AVIBE unless such counterclaims have either been acknowledged by AVIBE in writing or have been established by a court of law.
- Payments shall be made, without any deductions, free AVIBE's payment office in the agreed currency. Payment by credit card of a recognised Austrian institution and a valid bank account or by direct debit shall be accepted as means of payment.
- Insofar as Customer has chosen payment by direct debit, the following shall apply:
- Customer hereby authorises AVIBE to collect all amounts due by direct debit from its account specified in the order. The amounts due shall be debited from the account specified by Customer by direct debit after the order has been placed.
- Customer shall at all times ensure that there are sufficient funds in its account and that the amounts due can be collected by AVIBE.
- Insofar as direct debits have to be reversed because Customer's account from which the amounts due are to be debited has no or insufficient funds, or because Customer revokes the direct debit without legal grounds, Customer undertakes to reimburse AVIBE for the return debit charges incurred as well as a processing fee of EUR 10.00.
- AVIBE shall be obliged, subject to compliance with the agreed terms of payment, to remedy in accordance with the following provisions any defect affecting the functionality which exists at the time of handover and which is due to a fault in the design, material or workmanship. No warranty claims can be derived from information in catalogues, brochures, advertising literature and written or oral statements that have not been included in the contract.
- The warranty period is 12 months, unless special warranty periods have been agreed for individual delivery items. This also applies to delivery items and items of service which are firmly connected to a building or land. The warranty period shall commence at the time of the transfer of risk in accordance with §5.
- The warranty claim shall require that Customer has notified AVIBE in writing within a reasonable period of time of the defects that have occurred and that the notification has been received by AVIBE. Customer shall prove the existence of the defect within a reasonable period of time, in particular by making available to AVIBE the documents or data available to it. In the event of a defect covered by warranty pursuant to § 9 (1), AVIBE shall, at its discretion, repair the defective goods or the defective part at the place of performance or have them sent to AVIBE for the purpose of repair or make a reasonable price reduction.
- All ancillary costs incurred in connection with the rectification of defects (e.g. for installation and removal, transport, disposal, travel and travel time) shall be borne by the customer. The necessary auxiliary personnel, lifting equipment, scaffolding and small materials etc. shall be provided free of charge for warranty work at Customer's premises. Replaced parts shall become the property of AVIBE.
- If a product is manufactured by AVIBE on the basis of design data, drawings, models or other specifications provided by Customer, AVIBE's liability shall extend only to the execution in accordance with the conditions.
- Excluded from the warranty shall be such defects as result from arrangement and assembly not carried out by AVIBE, inadequate set-up, failure to observe the installation requirements and conditions of use, overloading of the parts in excess of the performance specified by AVIBE, negligent or incorrect handling and use of unsuitable operating materials.
- This shall also apply in the event of defects attributable to material provided by Customer. AVIBE shall also not be liable for damage caused by the actions of third parties, atmospheric discharges, overvoltages and chemical influences. The warranty shall not apply to the replacement of parts that are subject to natural wear and tear. AVIBE shall not assume any warranty for the sale of used goods.
- The warranty shall expire immediately if Customer itself or a third party not expressly authorised by AVIBE carries out modifications or repairs to the delivered items without AVIBE's written consent.
- Claims pursuant to § 933b ABGB (Austrian Civil Code) shall in any case become statute-barred upon expiry of the period referred to in § 9 (2).
- The provisions of § 9 (1) to (8) shall apply mutatis mutandis to any liability for defects on other legal grounds.
10 Liability and compensation
- AVIBE shall only be liable for damages outside the scope of application of the Product Liability Act (PHG) to the extent that intent or gross negligence can be proven, within the framework of the statutory provisions. Liability for slight negligence, compensation for consequential damage, pure financial loss, loss of profit, savings not achieved, loss of interest and damage from third party claims against the customer are excluded.
- In the event of non-compliance with any (delivery) conditions or official approval conditions, any compensation for damages shall be excluded.
- If contractual penalties have been agreed, any further claims under the respective title shall be excluded.
- Events of force majeure which make the provision of contractual services significantly more difficult or impossible shall entitle AVIBE to postpone the fulfilment of contractual obligations for the duration of this hindrance and a reasonable start-up period. Force majeure shall be deemed to include strikes, lock-outs, government intervention for which AVIBE is not responsible and similar circumstances, insofar as they are unforeseeable, serious and not the fault of AVIBE. Any liability on the part of AVIBE shall also be excluded in such cases.Insofar as AVIBE's liability is excluded under these General Terms and Conditions, this shall also apply to the liability of bodies, employees, vicarious agents or other persons contractually commissioned to provide services to the customer.
11 Prohibition of assignment
- The transfer of this contract as well as the assignment of rights and the transfer of obligations arising from this contract are not permitted without the written consent of the other contracting party.
12 Final Provisions
- The court with subject-matter jurisdiction at AVIBE's head office shall have exclusive jurisdiction to decide any disputes arising from the agreement - including disputes concerning its existence or non-existence. Mandatory statutory jurisdiction shall remain unaffected.
- The contract shall be governed by Austrian law to the exclusion of the conflict-of-law rules. The application of the United Nations UNCITRAL Convention on Contracts for the International Sale of Goods is excluded.
- AVIBE shall be entitled to amend these GTC at any time and shall inform Customer in writing (by e-mail) of the amendments and the date on which they are intended to take effect at least one month before the date on which the amended GTC are intended to take effect. The customer may object to the changes. If no objection is made by the time of the intended entry into force, the amended GTC shall become effective at the time announced.
- If any provision of this contract is or becomes invalid or unenforceable, this shall not affect the validity or enforceability of the remaining provisions. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose economic purpose and economic result comes as close as possible to the provision to be replaced and meets the original intention of the contracting parties. The contracting parties undertake to set down this replacement provision in writing without delay and to sign it.