GENERAL TERMS AND CONDITIONS
Fb INDUSTRY AUTOMATION.
As at 03/16
1.1 These terms and conditions apply between us, the company Fb Industry Automation GmbH, and natural and legal persons (client for short) for the legal transaction in question as well as for corporate customers for all future transactions, even if in individual cases, in particular for future supplementary or follow-up orders not expressly referred to.
1.2 With regard to entrepreneurial clients, the version of our T&C that is valid at the time of contract conclusion and can be found on our website at www.fb-automation.com is applicable.
1.3 We exclusively conclude contracts on the basis of our T&C.
1.4 Terms and Conditions of the client, or amendments/supplements to our T&C, shall require our express consent – in writing to entrepreneurial clients – in order to be valid.
1.5 Terms and Conditions of the client shall not be deemed as recognised even if we do not expressly object to them after receipt.
2. Offer/conclusion of contract
2.1 Our offers are not binding.
2.2 Promises, assurances, or warranties on our part, or agreements that deviate from these T&C that are associated with the conclusion of a contract shall only become binding with regard to entrepreneurial clients following our written confirmation.
2.3 Information about our products and services that is listed in catalogues, price lists, brochures, advertisements on trade fair booths, newsletters, direct marketing, or other media (“product information”) that is not attributable to us shall be presented to us by the client insofar as the client bases their decision to place an order on such product information. In this case we can comment on the accuracy of the product information. If the client does not comply with this obligation, such information shall not be binding unless it has expressly acknowledged in writing to be part of the contract with entrepreneurial clients.
2.4 Cost estimates are not binding.
2.5 Cost estimates are chargeable. Consumers are advised in advance of the charge for preparation of a cost estimate.
3.1 Price quotations should generally not be understood as flat rates.
3.2 For services ordered by the client that are not covered in the original order, there is an entitlement to reasonable remuneration.
3.3 Appropriate and environmentally-friendly disposal of waste material is the responsibility of the client. If we are separately commissioned to carry out this disposal and in the absence of a remuneration agreement, the client shall reasonably remunerate us for this.
3.4 We are entitled at our own discretion, or required upon request by the client, to adjust the contractually agreed prices if there are changes of at least 5% with regard to
the statutory wage costs, regulations, collective agreements, works agreements, or
other cost factors that are necessary for the provision of services, such as material costs, if they have changed due to recommendations of the Joint Committee, changes to the domestic or world market prices for raw materials, changes to relevant exchange rates, etc. that have occurred since the conclusion of contract. The adjustment shall be made to the extent that the actual production costs at the time of contract conclusion changed compared to the time of actual service performance, insofar as we are not in default.
3.5 Remuneration for continuous obligations is agreed in accordance with the CPI 2010, and adjusted accordingly. The month of contract conclusion is taken as the starting point.
3.6 In the event of changes to costs, consumer clients shall only be entitled to adjustment of the costs in accordance with Section 3.3, or in the case of continuous obligations in accordance with Section 3.4, following individual contractual negotiations and if the service is to be performed within two months of contract conclusion.
3.7 Lines laid in an arc are measured by the outer arc. Shaped parts and fittings are included in the pipe dimensions but charged separately. The dimensions of corrosion protection and painting are assumed to correspond with the length of the pipes underneath. The dimensions of thermal insulation are measured on the external surfaces. Gaps of up to one meter are disregarded.
4. Provided goods
4.1 If equipment or other materials are provided by the client, we shall be entitled to charge the client a surcharge of 20% of the value of the equipment or materials provided.
4.2 Such equipment or other materials provided by the client shall not be covered by the warranty.
5.1 30% of the remuneration shall be due upon conclusion of the contract, 30% upon readiness for delivery, 30% upon delivery, and 10% upon commissioning.
5.2 The entitlement to a discount deduction requires an express – with entrepreneurial clients – written agreement.
5.3 In the case of a default in payment that the client is responsible for, we are entitled to charge interest at a rate of 5% above the base interest rate for consumer clients, or 8% above the base interest rate for entrepreneurial clients.
5.4 We reserve the right to claim additional damages for delay, however for consumer clients this only applies if individually negotiated.
5.5 If, within the scope of an existing contractual relationship with us, an entrepreneurial client defaults on payment, we shall be entitled to suspend performance of our contractual obligations until the client performs their payment obligations.
5.6 In this case, we are then also entitled to demand payment for all services already rendered as part of our ongoing business relationship with the client. This only applies to consumer clients in the event that an overdue payment has been in default for at least six weeks and we have unsuccessfully reminded the client with specification of this consequence and a grace period of at least two weeks.
5.7 The client shall only be entitled to offset these claims if counterclaims have been established in a court of law or acknowledged by us. Consumer clients shall also be entitled to offset claims if the counterclaims are legally related to payment obligations of the client, or in the event of insolvency of our company.
5.8 If the payment deadline is exceeded, any allowances granted (discounts, deductions, etc.) shall be forfeited and added to the invoice.
5.9 In the case of a default in payment that the client is responsible for, the client commits to pay a reminder fee of €10 for the second reminder and €20 for the third reminder, insofar as this is reasonably proportionate to the pursued claim.
6. Credit check
6.1 The client declares their explicit consent that their data may be transferred to the officially recognised creditor protection associations “AKV EUROPA Alpenländischer Kreditorenverband für Kreditschutz und Betriebswirtschaft,” “Creditreform Wirtschaftsauskunftei Kubicki KG,” and “Kreditschutzverband von 1870 (KSV)”.
7. Cooperation obligations of the client
7.1 Our obligation to perform the service shall begin at the earliest once the client has established all structural, technical and legal prerequisites for performance as specified in the contract, or in information provided to the client before conclusion of the contract, or which the client should have known due to relevant expertise or experience.
7.2 In particular, before the start of service performance and without being requested to do so, the client shall provide relevant information about the location of concealed power, gas, and water lines, similar fixtures, escape routes, other structural obstacles, other possible sources of interference, potential hazards, as well as any required structural details and any expected changes regarding this information. Order-related details for the necessary information can be requested from us.
7.3 If the client does not comply with this cooperation obligation then, exclusively with regard to incomplete performance due to incorrect client information, our performance is not deficient.
7.4 The client must make arrangements for any necessary approvals by third parties as well as notifications to and authorisations by the authorities (e.g., registration of power procurement). We indicate this as part of the contract conclusion, insofar as the client has not waived to need this information or an entrepreneurial client can be expected to have such knowledge due to training or experience.
7.5 The quantities of energy and water required for performance of service, including during trial operation, shall be provided at the client’s expense.
7.6 For the duration of service performance, the client shall provide us, free of charge, with lockable rooms for workers as well as for the storage of tools and materials.
8. Service performance
8.1 Minor amendments to our service performance, which are reasonable and objectively justified for the client, shall be deemed as approved in advance. This right only exists for consumer clients insofar as it is negotiated on a case-by-case basis.
8.2 Partial deliveries and services that are objectively justified (e.g., equipment size, construction progress, etc.) are permitted and can be invoiced separately.
9. Service deadlines and dates
9.1 In the case of force majeure, strikes, unforeseeable delays on the part of our suppliers for which we are not responsible, or other similar events that are beyond our control (e.g., bad weather), deadlines and dates shall be postponed for the duration of the event in question. This does not affect the client’s right to withdraw from the contract in the event that delays make it unreasonable to be bound to the contract.
9.2 If the start of service performance or the performance itself is delayed or interrupted due to circumstances attributable to the client, in particular due to violation of the cooperation obligations in accordance with Section 7 of these T&C, then the performance deadlines and agreed completion dates shall be extended accordingly.
9.3 Delivery and completion dates shall only be binding with regard to entrepreneurial clients if compliance has been promised in writing.
9.4 In the event of a delay in contractual performance by us, the client shall be entitled to withdraw from the contract after setting a reasonable grace period. Setting of the grace period must be in writing (for entrepreneurial clients by registered letter) with a simultaneous threat of withdrawal.
10. Reference to limitation in the scope of services
10.1 As part of installation and maintenance work, damage may occur
to already existing (pipe) lines, to equipment as a result of unrecognisable (in particular structural) conditions, or to material in the existing inventory
during cutting/chiselling work on lose walls. We are only liable for such damage if we have culpably caused it.
11. Temporary repair
11.1 In the case of temporary repair, there is only a very limited service life that is based on the corresponding circumstances.
12. Assumption of risk
12.1 The risk for materials and equipment delivered by us and stored or assembled at the place of performance shall be borne by the client. Losses or damages caused by the client shall be borne by the client.
13. Default of acceptance
13.1 If the client is in default of acceptance for more than two weeks (refusal to accept, delay in preliminary work, etc.) and the client has failed, within a reasonable grace period, to remedy the circumstances for which they are responsible and that delay or prevent performance of the service, we shall be entitled, despite the contract remaining in force, to use the equipment and materials specified for performance of the service for another purpose, provided that upon continuation of the service performance we procure such equipment and materials within a period that is reasonable considering the respective circumstances.
13.2 In the case of default of acceptance by the client and if we insist on fulfilment of the contract, we shall also be entitled to store the goods on our premises. In this case we are entitled to a storage fee of 1% of the gross invoice amount for every day or part thereof.
13.3 This shall not affect our right to demand payment for services rendered or withdraw from the contract after a reasonable grace period.
13.4 In the case of a justified withdrawal from the contract, we shall be entitled to claim lump sum compensation from the client to the value of 10% of the order value plus VAT without providing evidence of the actual damage. The obligation to payment of compensation for damage by an entrepreneurial client is not dependent on a fault.
13.5 Assertion of higher damage claims is admissible. This right only exists for consumer clients insofar as it is negotiated on a case-by-case basis.
14. Retention of title
14.1 The goods delivered, assembled, or otherwise transferred by us shall remain our property until payment has been received in full.
14.2 Resale is only permissible if we are notified of the sale in advance in good time, with details of the name and address of the purchaser, and have consented to the sale.
14.3 In the case of our consent, the purchase price claim shall hereby be deemed as assigned to us.
14.4 If the client is in default of payment, we shall be entitled to demand return of the goods subject to title of retention after a reasonable grace period. We may only exercise this right with regard to consumer clients if at least one overdue payment by the consumer has been in default for at least six weeks and they have been unsuccessfully reminded with a threat of legal consequences and a grace period of at least two weeks.
14.5 The client must notify us immediately of the opening of bankruptcy proceedings against their assets or seizure of any goods subject to retention of title.
14.6 We are entitled to enter the location of the goods subject to retention of title to assert our retention of title, insofar as this is reasonable for the client and reasonable advance notice has been given.
14.7 Necessary and reasonable costs for appropriate prosecution shall be borne by the client.
14.8 The assertion of retention of title claims shall only constitute a withdrawal from the contract if this is expressly stated.
14.9 We shall be entitled to dispose of goods subject to retention of title that we have reclaimed from entrepreneurial clients at our own discretion and at the best possible conditions.
15. Third party property rights
15.1 If the client contributes creations or documents, and third party rights are asserted with regard to these creations or documents, we shall be entitled to terminate production of the delivery item at the risk of the client until the third party rights have been clarified. We are also entitled to claim reimbursement of necessary and appropriate costs incurred, unless the claim is obviously not justified.
15.2 The client shall indemnify and hold us harmless in this regard.
15.3 We are entitled to demand reasonable advance payments for possible legal costs from entrepreneurial clients.
16. Our intellectual property
16.1 Plans, sketches, cost estimates, and other documents that are provided by us or created due to our contribution shall remain our intellectual property.
16.2 The use of these documents beyond the intended use, including in particular transmission, duplication, publication, or making available, copying (including of extracts), requires our express consent.
16.3 Furthermore, the client undertakes to maintain confidentiality to third parties regarding any knowledge acquired during the course of the business relationship.
17.1 The warranty period for services rendered for entrepreneurial clients shall be one year from handover.
17.2 In the absence of an agreement to the contrary (e.g., formal acceptance), the time of handover shall be the time of completion, or at the latest when the client has accepted the service performance into their authority to dispose or refused acceptance without statement of reasons.
17.3 Remedy of a defect claimed by a client shall not constitute acknowledgement of the defect claimed by the client.
17.4 An entrepreneurial client shall allow at least two attempts to remedy a defect.
17.5 If the defect claims of the client are unjustified, the client is obligated to reimburse us for any expenses incurred in determining that the goods are free of defect or for remedying the defect.
17.6 An entrepreneurial client must always prove that the defect was present at the time of handover.
17.7 Defects in the delivery item that the entrepreneurial client discovers, or should have discovered during examination as part of the ordinary course of business after delivery, must be promptly reported to us in writing, at the latest a few days after delivery. Hidden defects must also be reported within a reasonable period after discovery.
17.8 Any use or processing of the defective delivery item that may cause additional damage or make discovery of the original cause difficult or impossible should be immediately discontinued by the client unless this cannot reasonably be expected.
17.9 If a notice of defect is not made in due time, the goods shall be deemed as approved.
17.10 The defective delivery, or samples thereof, shall be returned to us by the entrepreneurial client insofar as this is economically justifiable.
17.11 The costs for return shipment of the defective item to us shall be borne in full by the entrepreneurial client.
17.12 The client is obligated to enable defect determination by us as quickly as possible.
17.12 The warranty is excluded if technical equipment of the client, for example supply lines, cabling etc. is not in a technically perfect and operational condition, or is not compatible with the delivered items, insofar as this circumstance caused the defect.
18.1 We shall only be liable for financial losses in the case of breach of contractual or pre-contractual obligations in the case of intent or gross negligence, in particular due to impossibility, delay etc.
18.2 With regard to entrepreneurial clients, liability is limited to the maximum liability amount of any liability insurance concluded by us.
18.3 This limitation of liability shall also apply for any damage to an item that we have accepted for processing. With regard to consumers, however, this shall only apply if negotiated in an individual contract.
18.4 Claims for damages by entrepreneurial clients shall lapse if they are not asserted in a court of law within six months.
18.5 The exclusion of liability also includes claims against our employees, representatives, and agents due to damages they cause to the client, without reference to a contract between them and the client.
18.6 Our liability is excluded for damages caused by improper handling or storage, overloading, non-compliance with operating or installation instructions, as well as by incorrect assembly, commissioning, maintenance, or servicing by the client or third parties that are not authorised by us, or naturally also wear insofar as this was the cause of the damage. Exclusion of liability also applies for omission of required maintenance, unless we have contractually assumed a maintenance obligation.
18.7 If and insofar as the client can claim insurance benefits through an indemnity insurance that they have concluded or that has been included on their behalf (e.g. liability insurance, comprehensive insurance, transport insurance, fire insurance, business interruption insurance, etc.) for damages that we are liable for, the client is obligated to claim these insurance benefits and therefore limit our liability to the disadvantages that result for the client as a result of claiming this insurance (e.g. higher insurance premium).
19. Severability clause
19.1 If individual provisions of these T&C are ineffective, this shall not affect the validity of the remaining provisions.
19.2 In agreement with the entrepreneurial client and based on the principle of honest contracting parties, we hereby already commit to jointly agree on a replacement provision that comes as close as possible to the economic result of the ineffective provision.
20.1 Austrian law shall apply.
20.2 UN sales law is excluded.
20.3 The place of performance is the registered office of the company at Heinz-Stoißer-Straße 5, 8200 Albersdorf-Prebuch, Austria, as well as the branch office at Schmied in der Weiz 229, 8171 St. Kathrein am Offenegg, Austria.
20.4 The place of jurisdiction for all disputes arising from the contractual relationship, or from future contracts between us and the entrepreneurial client, shall be the court with jurisdiction over our registered office.