General terms and conditions of business

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GENERAL TERMS AND CONDITIONS (GTC)

for entrepreneurs of the company projektengineering GmbH WIMTECH

Scope
Offer, conclusion of contract
Prices
Payment terms
Customer’s cooperation/duties
Performance execution
Performance deadlines and dates
Risk assumption
Retention of title
Delay in acceptance
Third-party intellectual property rights
Our intellectual property
Warranty
Liability
General

1. Scope

1.1. These General Terms and Conditions (GTC) govern all legal and business relationships between projektengineering GmbH WIMTECH, hereinafter referred to as "Contractor", "we" or "us", and natural and legal persons for whom this business is part of the operation of a company (hereinafter referred to as "Customer") for deliveries, services and offers from our company.

1.2. The contracting parties agree that these General Terms and Conditions apply not only to the initial legal transaction, but also expressly to all subsequent transactions, in particular follow-up and additional orders, even if no express reference is made to them in the individual case. Oral agreements between the contracting parties are superseded by the written contract. These General Terms and Conditions are deemed accepted upon conclusion of the contract, or at the latest upon use of the services.

1.3. We declare that we only intend to conclude contracts based on the current version of these Terms and Conditions, available at https://www.wimtech.at/de/agb . Any contractual terms and conditions of the customer are expressly rejected. These shall only apply if expressly agreed in writing. If, in exceptional cases, the validity of other contractual terms and conditions is agreed, their provisions shall only apply to the extent that they do not conflict with individual provisions of these Terms and Conditions. Non-conflicting provisions in the Terms and Conditions shall remain in effect. Agreements made in framework agreements shall take precedence over these Terms and Conditions to the extent that they conflict with the provisions of these Terms and Conditions; otherwise, any framework agreements shall be supplemented by these Terms and Conditions unless expressly agreed otherwise in writing. Any acts of contract fulfillment on our part shall under no circumstances be deemed to constitute consent to deviating contractual terms and conditions.

1.4. By signing our order confirmation or offer, the customer declares that they agree to the content of these Terms and Conditions. These Terms and Conditions are also available on our website at https://www.wimtech.at/de/agb and can be printed out.

1.5. Amendments and additions to these Terms and Conditions and to the individual contract must be made in writing to be legally effective. Electronically transmitted documents with a simulated handwritten signature (fax, scanned documents, etc.) or electronically transmitted documents with a qualified electronic signature meet the written form requirement. Mere emails, however, do not meet the written form requirement. This written form requirement can only be waived in writing. It is hereby stated that no ancillary agreements to these Terms and Conditions exist.

2. Offer, conclusion of contract

2.1. Our offers are subject to change without notice. Likewise, technical descriptions and other information in offers, brochures, and other information are initially non-binding. Any statements or offers made by us up to that point are non-binding and are considered an invitation to the customer to submit an offer.

2.2. The contract is concluded either by the customer signing the offer or order confirmation or by sending a written order confirmation from us or – without signing these documents – by the customer accepting the services/goods.

2.3 Offers and cost estimates are only issued in writing. Verbal cost estimates have no legal significance.

2.4. Unless otherwise agreed, offers and cost estimates are subject to payment. Offers and cost estimates are prepared based on the information provided by the customer, without any guarantee of completeness or accuracy.

2.5. If information in written order confirmations issued by us differs from the information in our catalogues, brochures or other information, the information in the order confirmation shall prevail.

2.6. Any promises, assurances and guarantees made by us or agreements deviating from these Terms and Conditions in connection with the conclusion of the contract shall only become binding upon our written confirmation.

3. Prices

3.1. Unless otherwise expressly agreed in writing, prices quoted are exclusive of applicable statutory VAT and are ex warehouse. Packaging, transport, loading, and shipping costs, as well as customs duties and insurance, are borne by the customer. We are only obligated to take back packaging if expressly agreed otherwise. The customer is responsible for the professional and environmentally friendly disposal of waste materials. If we are separately commissioned to do so, the customer must additionally compensate us for this in the agreed amount, or, in the absence of a fee agreement, appropriately.

3.2. Unless fixed prices or price commitments based on delivery dates have been expressly confirmed, we reserve the right to adjust prices accordingly for exchange rate changes, fiscal duties, customs duties, freight, raw material, manufacturing and labor costs increases that have occurred or been introduced between the date of order confirmation and the date of delivery.

3.3. For services ordered by the customer which are not covered by the original order, the customer is entitled to reasonable remuneration.

3.4. If the customer does not provide us with a delivery location, including parking, within a maximum distance of 200 meters, we will be compensated for the additional costs by charging a surcharge of €20 per kilometer or part thereof. There will also be a surcharge of €10 per floor to be climbed for which no suitable elevator is available to transport all contractual services.

3.5. The remuneration for continuing obligations is agreed as value-protected according to the 2015 CPI, and the remuneration is adjusted accordingly. The starting point is the month in which the contract was concluded.

3.6. If the billing is based on measurements and a joint determination of the measurements has been agreed, the customer, in the event of absence despite a timely invitation, must prove that the measurements determined were not correct.

4. Terms of payment

4.1. Any right to deduct a discount granted by us (under an individual contract) does not change the immediate due date of the amount reduced by the discount. Our conduct, in particular a failure to assert the claim reduced by the discount within the discount period, does not constitute a waiver of the right to assert the claim or a tacit amendment to the contract. Payments without the right to deduct a discount remain unaffected. Payment allocations made by the customer are not binding for us.

4.2. In the event of late payment, the customer shall pay 12% interest per annum. In the event of late payment, the customer shall reimburse us for all reasonable and necessary costs incurred, including, but not limited to, reminders, collection attempts, and any legal fees, whether in or out of court. If the payment deadline is exceeded, even with regard to a single partial delivery, any remuneration granted (rebates, discounts, etc.) shall be forfeited.

4.3. The customer is only entitled to offset claims to the extent that counterclaims have been legally established or acknowledged by us. The customer is only entitled to exercise a right of retention to the extent that their counterclaim is based on the same contractual relationship. If the customer exercises their right of retention based on alleged defects, this right is limited to the cost of remedying the defect.

4.4 In the event of delays in payment or deterioration of the customer's creditworthiness, we shall be entitled to suspend the provision of services entirely or to make further provision of services dependent on advance payment.

5. Customer’s cooperation/duties

5.1. Our obligation to perform the service begins at the earliest when the customer has created all structural, technical and legal requirements for execution that were described in the contract or in information provided to the customer prior to conclusion of the contract or that the customer should have known due to relevant specialist knowledge or experience.

5.2 In particular, before the service is carried out, the customer must provide the necessary information on:

Location of concealed electricity, gas and water pipes or similar devices,
Escape routes, other structural obstacles,
other possible sources of disruption and danger,
required static information and any planned changes

to be made available without being asked.

5.3. If the customer fails to comply with this obligation to cooperate, our performance shall not be deemed defective – solely with regard to the inability to perform due to incorrect customer information.

5.4. The customer is responsible for obtaining any necessary third-party permits, notifications, and approvals from authorities (e.g., registration for electricity supply) at his or her own expense. We will draw your attention to these obligations during the contract conclusion process, unless the customer has waived them or was required to possess the relevant knowledge due to training or experience.

5.5. For installations to be carried out by us, the customer is obliged to ensure that work can begin immediately after the arrival of our installation personnel.

5.6. The quantities of energy and water required for the performance of the Services, including the trial operation, shall be provided by the Customer at its own expense.

5.7. The customer is responsible for ensuring that the technical systems, such as supply lines, cabling, networks, and the like, are in technically sound and operational condition and compatible with the works or items to be manufactured by us.

5.8 We are entitled, but not obligated, to inspect these systems for a separate fee.

5.9. The Customer shall provide us with lockable rooms for the accommodation of the workers and for the storage of tools and materials free of charge for the duration of the performance of the services.

5.10. The Customer shall be liable for ensuring that the necessary structural, technical and legal requirements for the work to be produced or the object of purchase are met, which were described in the contract or in information provided to the Customer prior to the conclusion of the contract, or which the Customer should have known due to relevant specialist knowledge or experience.

5.11. The customer is not entitled to assign claims and rights arising from the contractual relationship without our written consent.

6. Performance

6.1. We are only obligated to consider subsequent modification and extension requests from the customer if they are necessary for technical reasons in order to achieve the purpose of the contract.

6.2. Minor changes to our performance that are reasonable and objectively justified for the customer shall be deemed to have been approved in advance.

6.3. If, for whatever reason, the order is modified or supplemented after it has been placed, the delivery/performance period shall be extended by a reasonable period.

6.4. If the Customer requests performance of the service within a shorter period of time after conclusion of the contract, this constitutes a change to the contract. This may necessitate overtime and/or incur additional costs due to the acceleration of material procurement; the remuneration shall be increased appropriately in proportion to the necessary additional effort.

6.5. Partial deliveries and services justified on objective grounds (e.g., plant size, construction progress, etc.) are permissible and may be invoiced separately.

7. Performance deadlines and dates

7.1 In the event of force majeure, strikes, unforeseeable delays by our suppliers for which we are not responsible, or other similar events beyond our control (e.g., bad weather), deadlines and dates shall be postponed by the period during which the relevant event lasts.

7.2. If the commencement of the performance of the service or the execution of the service is delayed or interrupted due to circumstances attributable to the customer, in particular due to the customer's breach of his or her duty to cooperate in accordance with these General Terms and Conditions, the performance deadlines shall be extended accordingly and the agreed completion dates shall be postponed accordingly.

7.3. We are entitled to charge 2% of the gross invoice amount for each month of delay in performance for the necessary storage of materials and equipment at our premises; the customer's obligation to pay and his obligation to accept the goods remain unaffected.

7.4. Delivery and completion dates are only binding if we have confirmed their compliance in writing. Compliance with any agreed delivery deadlines is subject to the customer's fulfillment of their contractual obligations.

7.5. In the event of our delay in fulfilling the contract, the customer has the right to withdraw from the contract. In the event of withdrawal, the customer must first set a grace period of at least 21 days by registered letter, simultaneously threatening to withdraw. The customer is not entitled to compensation, even in the event of a justified withdrawal.

8. Assumption of risk

8.1. The risk shall pass to the customer as soon as we hold the purchased item, material or work ready for collection at the factory or warehouse, deliver it ourselves or hand it over to a carrier.

8.2. The customer shall take out appropriate insurance against this risk. We undertake to take out transport insurance upon the customer's written request and at the customer's expense. The customer approves any customary method of shipping.

9. Retention of title

9.1. The goods delivered, assembled or otherwise handed over by us remain our property until full payment has been made.

9.2. Resale is only permitted if we have been notified of this in good time, stating the name and address of the buyer, and if we consent to the sale.

9.3. In the event of our consent, the customer's purchase price claim shall be deemed to have been assigned to us.

9.4 If the customer defaults on payment, we shall be entitled, after granting a reasonable grace period, to demand the return of the reserved goods.

9.5. The customer must notify us immediately of the opening of bankruptcy proceedings against his assets or the seizure of our reserved goods.

9.6. We are entitled to enter the location of the reserved goods to assert our retention of title, provided this is reasonable and subject to reasonable advance notice.

9.7. The customer shall bear any necessary and reasonable costs for the purpose of pursuing legal action.

9.8 The assertion of retention of title shall only constitute a withdrawal from the contract if this is expressly declared.

9.9 We may dispose of the returned goods subject to retention of title at our discretion and in the best possible manner.

9.10. Until all our claims have been paid in full, the goods or services purchased may not be pledged, assigned as security, or otherwise encumbered with third-party rights. In the event of seizure or other claims, the customer is obligated to point out our ownership rights and to notify us immediately.

10. Delay in acceptance

10.1. If the customer is in default of acceptance for more than three weeks (refusal of acceptance, delay in advance performance or otherwise), and if the customer has not ensured the elimination of the circumstances attributable to him which delay or prevent the performance of the service despite being granted a reasonable grace period, we may, if the contract is still valid, dispose of the equipment and materials specified for the performance of the service in another way, provided that, in the event of continuation of the performance of the service, we procure these within a period appropriate to the respective circumstances.

10.2. In the event of default of acceptance by the customer, we are also entitled to store the goods at our premises, provided we insist on the fulfilment of the contract, for which we shall be entitled to charge a storage fee of 5%.

10.3. This shall not affect our right to demand payment for services rendered and to withdraw from the contract after a reasonable grace period.

10.4. The assertion of higher damages is permissible.

11. Third-party intellectual property rights

11.1. If the customer provides intellectual creations or documents and third-party intellectual property rights are asserted with regard to such creations, we shall be entitled to suspend the manufacture of the delivery item at the customer's risk until the third-party rights have been clarified and to claim reimbursement of the necessary and appropriate costs incurred by us, unless the unjustified nature of the claims is evident.

11.2. The customer shall indemnify and hold us harmless in this regard.

11.3 We may also demand reimbursement from the customer for any necessary and useful costs incurred by us.

11.4 We are entitled to demand reasonable advance payments from the customer for any legal costs.

12. Our intellectual property

12.1. Plans, sketches, cost estimates and other documents provided by us or created through our contribution remain our intellectual property.

12.2. The use of such documents outside of their intended purpose, in particular the distribution, reproduction, publication and making available, including copying even in part, requires our express consent.

12.3. The customer also undertakes to maintain confidentiality with regard to any knowledge acquired during the business relationship with third parties.

13. Warranty

13.1. The warranty period for our services is 6 months from delivery.

13.2. Unless otherwise agreed (e.g. formal acceptance), the time of handover shall be the time of completion, at the latest when the customer has taken possession of the service or has refused to take possession without giving reasons.

13.3. If a joint handover is planned and the customer fails to attend the handover date communicated to him, the handover shall be deemed to have taken place on that date.

13.4. Corrections of a defect alleged by the customer do not constitute an acknowledgement of this defect.

13.5. We will fulfill the customer's warranty claims, at our discretion, either by replacement, repair within a reasonable period of time, or by price reduction. Wear parts are excluded from the warranty.

13.6. Customer claims for damages aimed at remedying the defect through improvement or replacement can only be asserted if we are in default with the fulfilment of the warranty claims.

13.7. If the customer's claims of defects are unjustified, the customer is obligated to reimburse us for any expenses incurred in determining the absence of defects or in rectifying the defect.

13.8. The customer must always prove that the defect already existed at the time of delivery.

13.9. The customer must inspect the goods immediately after delivery, but no later than within 7 working days, and report any defects in writing within 3 working days of discovery. Hidden defects must be reported in writing immediately, but no later than 3 working days of discovery. If the customer fails to do so, the goods will be deemed accepted.

13.10. The right of recourse pursuant to Section 933b of the Austrian Civil Code (ABGB) is excluded.

13.11. Any use or processing of the defective service object that threatens further damage or makes it difficult to determine the cause must be discontinued by the customer immediately, to the extent that this is reasonable.

13.12. The customer must return any defective delivery or samples to us – if economically reasonable. The customer shall bear the transport and travel costs for rectifying the defects.

13.13. The warranty is excluded if the customer's technical equipment (supply lines, cabling, etc.) is not in technically perfect and operational condition or is not compatible with the delivered items, insofar as this circumstance is causal for the defect.

13.14. No defect shall exist if the suitability of the work for the agreed use is limited only due to deviating actual circumstances caused by the customer failing to comply with his or her duty to cooperate.

14. Liability

14.1. Due to breach of contractual or pre-contractual obligations, in particular impossibility, delay, etc., we shall only be liable for financial losses in the event of intent or gross negligence due to technical peculiarities.

14.2. Liability is limited to the maximum amount of any liability insurance we may have taken out.

14.3 This limitation also applies to damage to items that we have accepted for processing.

14.4. The customer's claims for damages shall expire after 6 months from the date of knowledge of the damage and the person responsible, but no later than 1 year after delivery of the goods.

14.5. This exclusion of liability also includes claims against our employees, representatives, and vicarious agents.

14.6. Our liability is excluded for damages caused by:

improper handling or storage,
Overuse,
Failure to follow operating and installation instructions,
faulty assembly, commissioning, maintenance, repair by the customer or unauthorized third parties,
natural wear and tear

provided that this circumstance was causal for the damage.

14.7. If the customer is entitled to claim insurance benefits for damages, our liability is limited to disadvantages resulting from such claims (e.g., higher insurance premiums).

15. General

15.1. The court with jurisdiction over the subject matter at the location of our company's registered office shall have exclusive jurisdiction to resolve all disputes.

15.2. The place of performance is the registered office of our company.

15.3. The substantive law of the Republic of Austria shall apply exclusively; conflict of laws and the UN Convention on Contracts for the International Sale of Goods are excluded.

15.4. Should individual provisions of these Terms and Conditions or the individual agreement be invalid or unenforceable, the validity of the remaining provisions shall remain unaffected. The invalid provision shall be replaced by a valid provision that most closely approximates the economic purpose of the original provision.

15.5. The customer must notify us immediately in writing of any changes to the company name, address, legal form or other relevant information.