1. Validity
1.1 These terms and conditions apply between MAXXOM Automation GmbH and natural persons and legal entities (hereinafter referred to as the customer) for the legal transaction in question as well as for all future transactions, even if no express reference is made to them in individual cases, in particular in the case of future supplementary or follow-up orders.
1.2 The current version of our GTC, available on our homepage (http://www.maxxom-automation.at) at the time the contract is concluded, shall apply.
1.3 We contract exclusively on the basis of our General Terms and Conditions.
1.4 Terms and conditions of the customer or amendments or supplements to our GTC require our express written consent in order to be valid.
2. Offers, conclusion of contract
2.1 Our offers are non-binding.
2.2 Promises, assurances and guarantees on our part or agreements deviating from these GTC in connection with the conclusion of the contract shall only become binding upon our written confirmation.
2.3 Cost estimates are non-binding.
3. Prices
3.1 Prices are not to be understood as all-inclusive prices.
3.2 For services ordered by the customer which are not covered by the original order, the customer shall be entitled to reasonable remuneration in the absence of an agreement on remuneration for work.
3.3 Prices are quoted exclusive of the applicable statutory value added tax and ex warehouse. Packaging, transport. Loading and shipping costs as well as customs duties and insurance shall be borne by the customer. We are only obliged to take back packaging if this has been expressly agreed.
3.4 We are entitled, as well as obliged at the customer’s request, to adjust the contractually agreed fees if changes of at least 5% have occurred with regard to labour costs or other cost factors necessary for the provision of services, such as procurement costs of the materials used.
3.5 The fee for continuing obligations is agreed as value-adjusted in accordance with the CPI 2005 and the fees are adjusted accordingly. The month in which the contract was concluded is taken as the starting point.
3.6 Costs for travelling, daily and overnight allowances shall be charged separately. Travelling time is considered working time.
4. Goods provided
4.1 Such equipment and other materials provided by the customer are not covered by the warranty.
5. Payment
5.1 One third of the fee shall be due upon conclusion of the contract, one third upon commencement of the service and the remainder upon completion of the service.
5.2 The authorisation to deduct a discount requires an express written agreement.
5.3 Payment dedications made by the customer on transfer documents are not binding for us.
5.4 If the customer is in default of payment under other contractual relationships with us, we shall be entitled to suspend the fulfilment of our obligations under this contract until the customer has fulfilled them.
5.5 We shall then also be entitled to declare due all claims for services already rendered from the current business relationship with the customer.
5.6 If the payment deadline is exceeded, even if only with regard to a single partial service, any remuneration granted (discounts, rebates, etc.) shall be forfeited and added to the invoice.
5.7 In the event of default of payment, the customer undertakes to reimburse us for the costs necessary and appropriate for the collection (reminder costs, collection fees, lawyer’s fees, etc.).
5.8 The customer shall only be entitled to set-off to the extent that counterclaims have been established by a court or recognised by us.
6. The customer’s duty to co-operate
6.1 Our obligation to perform the service shall commence at the earliest as soon as a) all technical details have been clarified, b) the customer has met the technical and legal requirements (which we will be happy to provide on request), c) we have received agreed advance payments or security deposits, and d) the customer fulfils his contractual advance performance and cooperation obligations, in particular also those mentioned in the following subsections.
6.2 In the case of assembly work to be carried out by us, the customer is obliged to ensure that the work can be started immediately after the arrival of our assembly personnel.
6.3 The customer must arrange for the necessary third-party authorisations and notifications and approvals from the authorities at his own expense. These can be requested from us.
6.4 The energy and water quantities required for the performance of the service, including trial operation, shall be provided by the customer at the customer’s expense.
6.5 The customer must provide us with lockable rooms that are not accessible to third parties free of charge for the time of performance of the service for the stay of the workers and for the storage of tools and materials.
6.6 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 conclusion of the contract or which the customer should have known on the basis of relevant expertise or experience.
6.7 The customer shall also be liable for ensuring that the technical installations, such as supply lines, cabling, networks and the like, are in a technically flawless and operational condition and are compatible with the works or objects of purchase to be produced by us.
6.8 We are authorised, but not obliged, to inspect these systems for a separate fee.
6.9 In particular, the customer must provide the necessary information on the location of concealed electricity, gas and water pipes or similar installations, escape routes, other structural obstacles, possible sources of danger and the necessary structural data without being asked before the start of the installation work.
6.10. The customer shall bear sole responsibility for the design and functionality of parts provided (compliance with various regulations).
6.11. The customer is not authorised to assign claims and rights arising from the contractual relationship without our written consent.
7. Performance execution
7.1 Objectively justified minor changes to our performance that are reasonable for the customer shall be deemed to have been approved in advance.
7.2 If, after the order has been placed, the order is amended or supplemented for any reason whatsoever, the delivery/performance period shall be extended by a reasonable period of time.
7.3 If, after conclusion of the contract, the customer wishes the service to be performed within a shorter period of time, this shall constitute an amendment to the contract. As a result, overtime may be necessary and/or additional costs may be incurred due to the acceleration of material procurement, and the remuneration shall increase appropriately in proportion to the necessary additional expenditure.
7.4 Objectively justified (e.g. system size, construction progress, etc.) partial deliveries and services are permitted and can be invoiced separately.
7.5 If delivery on call has been agreed, the object of performance/purchase shall be deemed to have been called six months after the order at the latest.
8. Delivery and performance deadlines
8.1 Delivery/service deadlines and dates are only binding for us if they have been agreed in writing. Any deviation from this provision must also be made in writing.
8.2 Deadlines and dates shall be postponed in the event of force majeure, strikes, unforeseeable delays by our suppliers for which we are not responsible or other comparable events beyond our control for the period during which the relevant event continues. This shall not affect the customer’s right to withdraw from the contract in the event of delays that make it unreasonable to be bound by the contract.
8.3 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 a breach of the duty to co-operate in accordance with point 7, the performance periods shall be extended accordingly and the completion dates postponed accordingly.
8.4 We shall be entitled to charge 2 % of the invoice amount for each month of delay in performance commenced for the storage of materials and equipment and the like in our company required as a result, whereby the customer’s obligation to pay and his obligation to accept shall remain unaffected by this.
8.5 In the event of cancellation of the contract due to default, the customer must set a grace period by registered letter with a simultaneous threat of cancellation.
9. Transfer of risk and despatch
9.1 The risk shall pass to the customer as soon as we hold the object of purchase/the work ready for collection at the factory or warehouse, or hand it or the material and equipment over to a carrier or haulier. Dispatch, loading and unloading as well as transport shall always be at the customer’s risk.
9.2 The customer authorises any appropriate mode of dispatch. We undertake to take out transport insurance at the customer’s written request and expense.
9.3 We are entitled to collect the packaging and shipping costs as well as the cash on delivery fee from the customer if the customer is in arrears with a payment from the existing business relationship with us or if a credit limit agreed with us is exceeded.
9.4 The customer shall be responsible for the safety of the materials and equipment delivered by us and stored or assembled at the place of performance. Loss and damage shall be at the customer’s expense.
10. Default of acceptance
10.1 If the customer is in default of acceptance for more than 1 week (refusal of acceptance, default with advance performance or otherwise, no call-off within a reasonable period in the case of an order on call) 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 setting a reasonable grace period, we may otherwise dispose of the equipment and materials specified for the performance of the service if the contract is upheld, provided that we procure these within a period appropriate to the respective circumstances if the performance of the service is continued.
10.2 If the customer is in default of acceptance, we shall also be entitled to store the goods at our premises if we insist on fulfilment of the contract, for which we shall be entitled to a storage fee in accordance with point 8.4.
10.3 In the event of a justified cancellation of the contract, we may demand lump-sum compensation from the customer in the amount of 30% of the gross order value without proof of actual damages.
10.4 The assertion of higher damages is permissible.
11. Reservation of title
11.1 The goods delivered, assembled or otherwise handed over by us shall remain our property until full payment has been made. Resale is not permitted until payment has been made in full.
11.2 Until full payment of the remuneration or purchase price, the Client must note this assignment in its books and on its invoices and inform its debtors of this. Upon request, he shall provide the Contractor with all documents and information required to assert the assigned receivables and claims.
11.3 The customer expressly agrees that we may enter the location of the goods subject to retention of title in order to assert our retention of title.
11.4 The customer shall bear any costs that are necessary and reasonable for appropriate legal action.
11.5 The assertion of the retention of title shall only constitute a cancellation of the contract if this is expressly declared.
11.6 We may realise the goods subject to retention of title that have been taken back on the open market and in the best possible way.
11.7 Until all our claims have been paid in full, the object of performance/purchase may not be pledged, transferred by way of security or otherwise encumbered with third-party rights. In the event of seizure or other claims, the customer is obliged to point out our right of ownership and to inform us immediately.
12. Industrial property rights of third parties
12.1 For delivery items which we manufacture according to customer documents (design data, drawings, models or other specifications, etc.), the customer alone shall assume the warranty that the manufacture of these delivery items does not infringe the industrial property rights of third parties.
12.2 If third-party industrial property rights are nevertheless asserted, we shall be entitled to discontinue the manufacture of the delivery items at the risk of the customer until the rights of third parties have been clarified, unless the unjustified nature of the claims is obvious.
12.3 We may also claim compensation from the customer for necessary and useful costs incurred by us.
12.4 We are entitled to demand reasonable advance payments for any legal costs.
13 Our intellectual property
13.1 Delivery items and related implementation documents, plans, sketches, cost estimates and other documents as well as software provided by us or created by our contribution shall remain our intellectual property.
13.2 Their use, in particular their dissemination, reproduction, publication and making available, including copying even in extracts, as well as their imitation, processing or utilisation requires our express consent.
13.3 Furthermore, the customer undertakes to maintain confidentiality vis-à-vis third parties with regard to the knowledge obtained from the business relationship.
14 Our intellectual property
15. Warranty
15.1 The warranty period for our services is one year from delivery.
15.2 In the absence of an 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 control of the service or has refused acceptance without giving reasons. In the absence of a justified refusal of acceptance, the service shall be deemed to have been transferred to the customer’s power of disposal on the day on which the customer is notified of completion.
15.3 The rectification of a defect alleged by the customer shall not constitute an acknowledgement of a defect.
15.4 The customer must always prove that the defect already existed at the time of handover.
15.5 Notices of defects and complaints of any kind must be made in writing immediately (at the latest after 5 working days) at the registered office of our company, describing the defect as precisely as possible and stating the possible causes, otherwise the warranty claims shall be forfeited. The goods or works complained about are to be handed over by the customer, insofar as this is feasible.
15.6 If the customer’s claims for defects are unjustified, the customer shall be obliged to reimburse us for any expenses incurred in establishing the absence of defects or rectifying defects.
15.7 Any transport and travelling costs incurred in connection with the rectification of defects shall be borne by the customer. At our request, the customer shall provide the necessary labour, energy and premises free of charge and cooperate in accordance with point 7.
15.8 The customer shall grant us at least two attempts to remedy the defect.
15.9 We can avert a request for cancellation by improvement or an appropriate price reduction, provided that the defect is not significant and irreparable.
15.10. If the objects of performance are manufactured on the basis of information, drawings, plans, models or other specifications of the customer, we shall only provide a warranty for the execution in accordance with the conditions.
15.11. The fact that the work is not fully suitable for the agreed use does not constitute a defect if this is based solely on deviating actual circumstances from the information available to us at the time of performance because the customer does not fulfil his obligations to cooperate in accordance with point 6.
15.12. It shall also not constitute a defect if the customer’s technical equipment such as supply lines, cabling, networks, etc. are not in a technically perfect and operational condition or are not compatible with the delivered items.
- 16. Liability
16.1 We shall only be liable for breach of contractual or pre-contractual obligations, in particular due to impossibility, delay, etc., in the case of financial losses in cases of intent or gross negligence.
16.2 Liability shall be limited to the maximum liability amount of any liability insurance taken out by us.
16.3 This limitation shall also apply with regard to damage to an item that we have accepted for processing.
16.4 Claims for damages must be asserted in court within six months, otherwise they shall lapse.
16.5. Die Beschränkungen bzw. Ausschlüsse der Haftung umfasst auch Ansprüche gegen unsere Mitarbeiter, Vertreter und Erfüllungsgehilfe aufgrund Schädigungen, die diese dem Kunden ohne Bezug auf einen Vertrag ihrerseits mit dem Kunden zufügen.
16.6 Our liability is excluded for damage caused by improper handling or storage, overloading, non-compliance with operating and installation instructions, incorrect 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. Liability is also excluded for failure to carry out necessary maintenance.
16.7 If and to the extent that the customer can claim insurance benefits for damages for which we are liable through its own insurance or insurance taken out in its favour (e.g. liability insurance, comprehensive insurance, transport, fire, business interruption and others), the customer undertakes to make use of the insurance benefits and our liability to the customer shall be limited to the disadvantages incurred by the customer as a result of making use of this insurance (e.g. higher insurance premium).
16.8 Those product characteristics shall be owed which can be expected from us, third-party manufacturers or importers with regard to the authorisation regulations, operating instructions and other product-related instructions and information (in particular also inspection and maintenance), taking into account the customer’s knowledge and experience. The customer as reseller must take out adequate insurance for product liability claims and indemnify and hold us harmless with regard to recourse claims.
- Right of use for electronic media
For the purpose of providing information about technical expertise in the electronic media (e.g. website, LinkedIn), MAXXOM Automation GmbH may present systems and processes created by customers there.
- 18. Severability clause
18.1 Should individual parts of these GTC be invalid, this shall not affect the validity of the remaining parts.
18.2 The parties hereby undertake to agree on a substitute provision – based on the horizon of honest contracting parties – which comes closest to the economic result, taking into account the customary industry practice of the invalid provision.
- 19. General information
19.1 Austrian law shall apply.
19.2 The UN Convention on Contracts for the International Sale of Goods is excluded.
19.3 The place of fulfilment is the registered office of the company (Oberhofen a.I.).
19.4 The place of jurisdiction for all disputes arising from the contractual relationship or future contracts between the Contractor and the Client shall be the court with local jurisdiction for the Contractor’s registered office.
19.5 The customer must notify us immediately in writing of any changes to his name, company name, address, legal form or other relevant information.
Status 07/2015