General terms and conditions of business
1.1 These terms and conditions apply between us (the company Grübl Automatisierungstechnik GmbH) and natural, but also legal persons (hereinafter referred to as “customer”) for any legal transactions, even if in individual cases, in particular for future supplementary or follow-up orders, no express reference is made to them.
1.2 The current version of our General Terms and Conditions (hereinafter referred to as “GTC”), available on our homepage (http://www.gruebl-automation.at), shall apply at the time of conclusion of the contract.
1.3 We expressly declare that we contract exclusively on the basis of these GTC. Other GTCs are not accepted insofar as they contradict these GTCs.
1.4 The customer’s terms and conditions or amendments or supplements to our GTC require our express written consent to become effective. These shall not be recognised even if they are not expressly objected to after receipt by us.
2. offer and conclusion of contract
2.1 Our offers and cost estimates are non-binding and subject to change.
2.2 We are entitled to refuse to conclude contracts without giving reasons.
2.3 For the conclusion of an order, the written and company-specific drawing on the part of the customer is required; for the scope of the order, the content of our order confirmation is subsequently decisive.
3.1 We shall be entitled to invoice the work performance to be rendered by us, according to the actual incidence, for the expenses incurred by us, unless lump sums have been expressly agreed in writing.
3.2 For services ordered by the customer, which were not included in the original order
If the costs are not covered, there shall be a claim to appropriate remuneration; the billing shall be based on “direct costs”, even if no supplementary or additional order is placed. Accommodation, per diem or travel expenses as well as staff allowances shall be invoiced separately on a time and material basis.
3.3 The respective agreed terms of payment shall apply to payments; invoicing in individual order sections is permissible.
3.4 Compliance with payment deadlines forms an essential basis for the contractual relationship. We are both entitled to stop the work in progress and to withdraw from the contract if payment is delayed for a period of 2 weeks or more.
3.5 The fee for continuing obligations shall be agreed as value-assured in accordance with the CPI 2010 and the fees shall be adjusted accordingly. The month in which the contract was concluded shall be taken as the starting point.
4. goods provided
4.1 No warranty and liability shall be assumed for equipment and other materials provided by the customer. This does not apply if we are guilty of gross negligence or intent.
5.1 Unless and insofar as otherwise agreed, the following shall apply: 1/3 of the remuneration shall be due upon placement of the order, 1/3 upon readiness for delivery and the remaining 1/3 upon completion; however, no later than four weeks after delivery. Irrespective of this, we shall be entitled to issue partial invoices for the respective stages of performance.
5.2 The entitlement to a discount requires an express written agreement.
5.3 In the event of default in payment, we shall be entitled to charge interest on arrears in accordance with § 456 of the Austrian Commercial Code (UGB). An interest rate of 4% p.a. shall apply to consumers.
5.4 The right to claim further damages (e.g. non-performance, delay in performance) is expressly reserved. The customer, who is not a consumer, waives the exercise of a judicial right of moderation.
5.5 If the customer is in default of payment within the scope of other contractual relationships existing with us, we shall be entitled to suspend the fulfilment of our obligations also from this contract until fulfilment by the customer.
5.6 The retention of payments or offsetting against counterclaims is not permitted.
5.7 The client expressly waives the objection of non-existing due dates due to the existence of defects or other poor performance. This provision does not apply to consumers, to whom the statutory provisions apply.
5.8 In the event that the payment deadline is exceeded, any allowances granted (rebates, discounts, etc.) shall be forfeited.
5.9 Costs and legal costs necessary and appropriate for recovery shall be paid separately.
6 Obligations of the customer to cooperate
6.1 Our obligation to perform the service shall commence as soon as the customer has created all structural, technical and legal prerequisites for performance and – unless otherwise agreed – the down payment invoice has been paid in full.
6.2 In the event that any claims for damages are otherwise forfeited, the customer shall provide the necessary information on the location of concealed electricity, gas and water lines or similar devices, escape routes, other obstacles of a structural nature, other possible sources of interference, sources of danger as well as the necessary static information and any projected changes in this regard without being requested to do so before the start of performance. Order-related details of the necessary information can be requested from us and demanded at any time. Delay on the part of the customer in providing such documents shall not lead to a breach of contract on our part.
6.3 If the customer does not comply with this obligation to cooperate, our performance shall not be deemed defective – exclusively with regard to the fact that our performance is not fully given as a result of incorrect information provided by the customer.
6.4 The customer shall arrange for the necessary approvals from third parties as well as notifications and approvals from authorities (e.g. registration of electricity purchases) at his own expense.
6.5 The energy and other operating materials required for the performance of the service, including trial operation, shall be provided by the customer at the customer’s expense.
7.1 Minor changes to our performance that are reasonable and objectively justified for the customer shall be deemed to have been approved in advance without a separate request.
7.2 Partial deliveries and services that are objectively justified (e.g. plant size, construction progress, etc.) are permissible and can be invoiced separately.
8. performance deadlines and dates
8.1 In the event of force majeure, strike, unforeseeable delays on the part of our suppliers for which we are not responsible or other comparable events beyond our control (e.g. bad weather), deadlines and dates shall be postponed for the duration of the event in question. In such a case, the customer is not entitled to claim damages or to withdraw from the contract.
8.2 If the start of the performance of the service or the performance is delayed or interrupted due to circumstances attributable to the customer, in particular due to the breach of the duties to cooperate pursuant to item 7 of these GTC, performance deadlines shall be extended accordingly and agreed completion dates shall be postponed accordingly.
8.3 In the event of a delay in the performance of the contract by us, the customer shall only be entitled to withdraw from the contract after setting a reasonable grace period. The grace period must be set by registered letter with simultaneous threat of withdrawal. The assertion of penalty payments, repentance money, damages, etc. is excluded.
9. reference to limitation of the scope of services
9.1 In the course of installation and repair work, damage to existing cables or electrical equipment may occur as a result of unrecognisable (in particular structural) conditions or material defects in the existing equipment. We shall only be responsible for such damage if we have caused it through gross negligence.
10. risk assumption
10.1 The risk for materials and equipment delivered by us and stored or assembled at the place of performance shall be borne by the customer. Losses and damage shall therefore be borne by him.
11. default of acceptance
11.1 If the customer is in default of acceptance (refusal of acceptance, default of advance performance, lack of payment of partial invoices, etc.), we shall be entitled to withdraw from the contract after setting a grace period of 14 days. In this case the customer is liable for all adverse consequences.
11.2 In the event of default in acceptance on the part of the customer, we shall also be entitled to store the goods on our premises if we insist on performance of the contract, for which we shall be entitled to a reasonable storage fee. Furthermore, we shall be entitled to claim damages for delay. This shall not affect our right to demand payment for services rendered.
11.3 In the event of an unjustified withdrawal from the contract, we may – in accordance with the progress of the order and planning – invoice the services rendered up to that point. In addition, we shall be entitled to demand liquidated damages in the amount of 20% of the order value. Furthermore, we are entitled to demand the entire positive damage, in particular the lost profit, in addition.
12. retention of title
12.1 The goods delivered or otherwise handed over by us shall remain our property until payment has been made in full.
12.2 A resale or fixed installation is only permissible if we have been informed of this in good time beforehand, stating the name and address of the purchaser, and we agree to the sale.
12.3 In the event of our consent, the purchase price claim shall already now be deemed to have been assigned to us.
12.4 If the customer is in default of payment, we shall be entitled to collect or dismantle the goods subject to retention of title at the customer’s expense after setting a reasonable grace period. The customer must allow access to the delivered goods for this purpose or we are entitled to obtain the necessary access.
12.5 The customer must notify us immediately of the opening of insolvency proceedings against his assets or of the seizure of our reserved goods.
13. industrial property rights / copyrights / patent rights / utility model rights:
13.1 We or our licensors are entitled to all copyrights to the services agreed upon or provided by us (programs, source code, program libraries, plans, software, data, electronic data, etc.).
The customer’s rights are limited exclusively to the use of the software within the scope of the services contractually stipulated by us and exclusively for his own purposes; the transfer or further distribution to third parties is prohibited.
13.2 If the customer contributes intellectual creations or documents and if third party property rights are asserted with regard to such creations, we shall be entitled to stop the production of the delivery item at the risk of the customer until the third party rights have been clarified and to claim compensation for the necessary and appropriate costs incurred by us, unless the lack of justification of the claims is obvious. The customer declares to indemnify and hold us harmless against claims of third parties.
13.3 Plans, sketches, cost estimates, electronic data and other documents provided by us or created by our contribution remain our intellectual property. Exploitation or disclosure to third parties is expressly prohibited.
13.4 The customer shall be expressly permitted to make copies for archiving and data backup purposes if and insofar as there is no prohibition to the contrary by a licensor and if and insofar as copyright and proprietary notices remain upright and no changes are made to the software.
14.1 The warranty period for our services is 2 years from handover in the case of movable items and 3 years in the case of immovable items. In the case of the acquisition of used items, a period of 1 year from handover shall apply.
14.2 In the absence of any agreement to the contrary (e.g. formal acceptance), the time of handover shall be the time of completion, at the latest when the customer has taken over the service in his power of disposal or has refused to take over the service without giving reasons.
14.3 Remedies of a defect alleged by the customer shall not constitute an acknowledgement of the defect alleged by the customer.
14.4 If the customer’s allegations of defects are unjustified, the customer shall be obliged to reimburse us for any expenses incurred in determining that the goods are free of defects or in rectifying the defects.
14.5 Defects in the delivery item which the customer has discovered or should have discovered by examination in the ordinary course of business after delivery must be reported to us in writing without delay, at the latest 5 days after handover. Hidden defects must also be reported within this reasonable period from the time of discovery.
14.6 Any use or processing of the defective object of performance that threatens further damage or makes it difficult or impossible to determine the cause shall be discontinued by the customer without delay.
14.7 If a notice of defect is not made in time in accordance with point 14.6, the work produced shall be deemed to have been approved.
14.8 Recognized defective deliveries are to be returned to us by the customer at his expense.
14.9 The warranty is excluded if the customer’s technical equipment, such as supply lines, cabling, etc., is not in a technically perfect and operational condition, or is not compatible with the delivered items or does not meet the technical requirements, insofar as this circumstance is causal for the defect.
14.10. As soon as repair attempts or other manipulations by third parties have been made on the defective performance stock, our warranty obligation shall lapse in its entirety.
14.11. In the event of the acceptance of program supplements or improvements of individual system parts, the warranty shall be limited to these; a liability for the complete work or a revival of already expired or time-barred warranty claims shall not occur as a result.
15.1 Any liability for damages, including consequential harm caused by a defect and product liability, whether in contract or in tort, shall only exist in the event of gross negligence or intent to be proven by the injured party.
15.2 Our liability is limited to the value of the order.
15.3 This limitation shall also apply with regard to damage to an item which we have accepted for processing.
15.4 The exclusion of liability also includes claims against our employees, representatives and vicarious agents due to damage caused by them to the customer – without reference to a contract on their part with the customer.
15.5 Our liability is excluded for damage caused by improper handling or storage, overloading, non-compliance with operating and installation instructions, faulty assembly, commissioning, maintenance, servicing by the customer or third parties not authorised by us, or natural wear and tear, insofar as this event was causal for the damage. Likewise, the exclusion of liability exists for failure to carry out necessary maintenance, insofar as we have not contractually assumed the obligation to carry out maintenance.
16. severability clause
16.1 Should individual parts of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining parts.
16.2 In the event that individual provisions of the contract are invalid, both we and the entrepreneurial customer undertake to jointly agree on a substitute provision that comes as close as possible to the economic result of the invalid provision, based on the understanding of honest contracting parties.
17.1 Austrian substantive and formal law shall apply exclusively.
17.2 The application of the UNCITRAL (CISG) Convention on Contracts for the International Sale of Goods is excluded.
17.3 The place of performance shall be 8212 Gersdorf an der Feistritz, which shall also be mutually agreed as the place of performance if deliveries are made to the customer.
17.4 For all disputes arising from the contractual relationship or future contracts between us and the entrepreneurial customer, the district court of Fürstenfeld shall be responsible both factually and locally.
17.5 The contracting parties mutually undertake to be commercially loyal; any enticement, but also freelance or work contract employment, also via third parties, of employees who have worked on the realisation shall be prohibited for a period of 12 months after termination of the contractual relationship, with any other compensation for damages amounting to the net annual salary of the employee concerned.
17.6 The Contractor undertakes to comply with the relevant provisions of data protection law and to indemnify and hold us harmless in this respect.