Terms and conditions of Altuntop GmbH

(Status January 2019)    

1. validity

1.1 These terms and conditions shall apply between us and natural persons and legal entities (in short, the customer) for the legal transaction in question as well as for all future transactions with business customers, 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 General Terms and Conditions, available on the homepage of Altuntop GmbH (http://www.altuntop.at), shall apply to business customers at the time of conclusion of the contract.

1.3 We contract exclusively on the basis of our GTC.

1.4 The customer’s terms and conditions or amendments or supplements to our GTC require our express consent – in writing to entrepreneurial customers – in order to be valid.

1.5 The customer’s terms and conditions shall not be recognised even if we do not expressly object to them after receipt by us. 

2 Offer/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 to entrepreneurial customers upon our written confirmation. This shall also apply to any waiver of the written form requirement.

2.3 Information about our products and services given in catalogues, price lists, brochures, advertisements on trade fair stands, circulars, advertising mailings or other media (information material) which is not attributable to us shall be presented to us by the customer – insofar as the customer bases its decision to place an order on such information. In this case, we may comment on their accuracy. If the customer violates this obligation, such information shall not be binding unless it has been expressly declared in writing to be part of the contract for entrepreneurial customers.

2.4 Cost estimates are non-binding and serve only as a guide.

2.5 Cost estimates are subject to payment. Consumers shall be informed of the obligation to pay before the cost estimate is drawn up. If an order is placed for all the services included in the cost estimate, the fee for the cost estimate shall be credited to the invoice in question.

3 Prices

3.1 Price quotations are in principle not to be understood as a lump sum price.

3.2 For services ordered by the client which are not covered by the original order, the client is entitled to an appropriate fee.

3.3 In the event of additional services requested by the customer or requested or necessary changes to plans or agreements, we shall be entitled, but not obliged, to submit a new offer, notwithstanding point 3.2. We are entitled to suspend the provision of services until this offer has been accepted. If the new offer is not accepted within three weeks, we are entitled to withdraw from the contract.

3.4 We shall not be liable for the correctness and completeness of service descriptions.

3.5 The customer shall arrange for the professional and environmentally sound disposal of old material. If we are separately commissioned to do so, the customer shall additionally pay for this to the extent agreed for this purpose, in the absence of an agreement on remuneration.

3.6 We are entitled of our own accord, as well as obliged at the request of the customer, to adjust the contractually agreed fees if changes of at least 3% occur with regard to

a) wage costs by law, regulation, collective agreement, company agreements or

b) other cost factors necessary for the provision of services such as material costs due to recommendations of the Joint Commissions or changes in national or world market prices for raw materials, changes in relevant exchange rates, etc. have occurred since the conclusion of the contract. The adjustment shall be made to the extent that the actual manufacturing costs at the time of conclusion of the contract change compared to those at the time of actual performance, provided that we are not in default. 

3.7 The remuneration for continuing obligations shall be agreed as value-assured according to the CPI 2005 and the remuneration shall be adjusted accordingly. The month in which the contract was concluded shall be taken as the starting point.

3.8 In the event of a change in costs, the fee for consumers as customers shall be adjusted in accordance with section 3.3 and in the case of continuing obligations in accordance with section 3.4 only in the case of individual contractual negotiations if the service is to be provided within two months of the conclusion of the contract.

3.9 Pipes laid in bends are measured in the outer bend. Fittings and armatures will be measured in the outer pipe dimension, but will be invoiced separately. The extent of corrosion protection and painting is assumed to be equal to the extent of the pipes underneath. The extent of the thermal insulation is measured on the outer surfaces. Interruptions up to a maximum of 1 metre are not taken into account.

4. goods provided

4.1 If equipment or other materials are provided by the customer, we shall be entitled to charge the customer a surcharge of 10% of the value of the equipment or material provided.

4.2 Such equipment and other materials provided by the customer are not subject to warranty.

 

5. payment

5.1 One third of the remuneration shall be due upon conclusion of the contract, one third upon commencement of performance and the remainder after completion of performance.

5.2 The entitlement to a cash discount requires an express written agreement with entrepreneurial customers.

5.3 In the event of a delay in payment for which we are responsible, we shall be entitled to charge consumers interest at a rate of 8 percentage points above the base interest rate.

5.4 We reserve the right to claim further damages for default, however, to consumers as customers only if this is negotiated in detail.

5.5 Construction schedules and completion deadlines are only binding for business customers if they have been agreed in writing.

5.6 If the entrepreneurial customer defaults on payment within the scope of other contractual relationships existing with us, we shall be entitled to suspend the performance of our obligations under this contract until the customer has fulfilled them.

5.7 We shall then also be entitled to call due all claims for services already rendered from the current business relationship with the customer. This only applies to consumers as customers in the event that an overdue service has been due for at least six weeks and we have unsuccessfully reminded the customer under threat of this consequence, setting a grace period of at least two weeks.

5.8 The customer shall only be entitled to a right of set-off insofar as counterclaims have been established by a court or recognised by us. Consumers as customers are also entitled to a right of set-off insofar as counterclaims are legally connected with the customer’s payment obligation, as well as in the event of insolvency of our company.

5.9 If the payment deadline is exceeded, any benefits granted (discounts, reductions, etc.) shall be forfeited and added to the invoice.

5.10. In the event of a delay in payment for which the customer is responsible, the customer undertakes to pay a reminder charge of € 35 per reminder, insofar as this is in reasonable proportion to the claim pursued.

6. credit assessment

6.1 The customer declares his explicit consent that his data may be transmitted to the state-preferred creditor protection associations AKV EUROPA Alpenländischer Kreditorenverband für Kreditschutz und Betriebswirtschaft, Creditreform Wirtschaftsauskunftei Kubicki KG and Kreditschutzverband von 1870 KSV exclusively for the purpose of creditor protection.  

7. obligations of the customer to cooperate

7.1 Our obligation to perform shall commence at the earliest as soon as the customer has created all structural, technical and legal prerequisites for performance 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 expertise or experience.

7.2 In particular, 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 respect without being asked to do so before the start of performance. Order-related details of the necessary information can be requested from us.

7.3 If the customer fails to comply with this duty to cooperate, our performance shall not be deemed defective – exclusively with regard to the fact that the performance is not fully given due to incorrect customer information.

7.4 The customer shall arrange for the necessary approvals of third parties as well as notifications and approvals by authorities at his own expense. We shall point these out within the framework of the conclusion of the contract, unless the customer has waived this or the entrepreneurial customer had to have such knowledge due to training or experience.

7.5 The energy and water quantities required for the performance of the service, including the trial operation, shall be provided by the customer at his expense.

7.6 The customer shall provide us free of charge with lockable rooms for the stay of the workers as well as for the storage of tools and materials for the time of the performance.

8 Performance of services

8.1 Minor changes to our performance which are reasonable and objectively justified for the customer shall be deemed to have been approved in advance. This right only exists for consumers if it is negotiated in the individual case.

8.2 Partial deliveries and services that are objectively justified (e.g. size of the plant, progress of construction, etc.) are permissible and can be invoiced separately. 

9. performance periods and deadlines

9.1 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, deadlines and dates shall be postponed for the duration of the event in question. This shall not affect the customer’s right to withdraw from the contract in the event of delays which make it unreasonable to bind the customer to the contract.

9.2 If the start of the performance of the service or the performance is delayed or interrupted due to circumstances attributable to the client, in particular due to a 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.

9.3 The Client shall be liable for the delays referred to in clause 9.2, in particular also for additional costs due to project collisions and extension of the construction period.

9.4 In the event of necessary additional work, the agreed construction period shall be extended to the extent necessary for the additional work.

9.5 In the event of a delay in the fulfilment of the contract by us, the customer shall be entitled to withdraw from the contract after setting a reasonable period of grace. The grace period must be set in writing (by registered letter for entrepreneurial customers) with simultaneous warning of withdrawal. 10. 

10. notice of limitation of the scope of performance

10.1 In the course of installation and repair work, damage may be caused 

a) to already existing lines, pipelines, fittings, sanitary fixtures and equipment as a result of unrecognisable conditions or material defects

b) during mortising work in bondless masonry. We shall only be responsible for such damage if we have culpably caused it.

11. makeshift repairs

11.1 In the case of makeshift repairs, there is only a very limited durability corresponding to the circumstances.

12. transfer of risk

12.1 The risk for materials and equipment delivered by us and stored or assembled at the place of performance, to which ownership is to be transferred as agreed, shall be borne by the customer. Losses and damage to our equipment and other items (e.g. our assembly tools) for which the customer is responsible and to which ownership is not to be transferred as agreed shall be borne by the customer. 

13. default of acceptance

13.1 If the customer is in default of acceptance for more than 2 weeks (refusal of acceptance, default 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 having been granted a reasonable grace period, we may otherwise dispose of the equipment and materials specified for the performance of the service while the contract remains in force, provided that we procure them within a reasonable period of time in the event that the performance of the service is continued.

13.2 In the event of default of 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 storage fee of 100 per day.

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

13.4 In the event of a justified withdrawal from the contract, we may demand from the customer liquidated damages in the amount of 80% of the order value plus VAT without providing evidence of the actual damage. The obligation to pay damages by an entrepreneurial customer is independent of fault.

13.5 The assertion of a higher damage is permissible. This right only exists against consumers if it is negotiated in the individual case.

14 Retention of title

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

14.2 A resale is only permissible if we have been informed of this in good time beforehand, stating the name and address of the purchaser, and we consent to the sale.

14.3 In the event of our consent, the purchase price claim shall already now be deemed assigned to us.

14.4 If the customer is in default of payment, we shall be entitled to demand the return of the goods subject to retention of title after setting a reasonable grace period. We may only exercise this right against consumers as customers if at least one outstanding payment of the consumer has been due for at least six weeks and we have reminded him unsuccessfully under threat of this legal consequence and setting a grace period of at least two weeks.

14.5 The customer shall notify us immediately of the opening of bankruptcy proceedings against his assets or of the seizure of our goods subject to retention of title.

14.6 We are entitled to enter the location of the goods subject to retention of title in order to enforce our retention of title, insofar as this is reasonable for the customer, after giving reasonable advance notice.

14.7 The customer shall bear the costs necessary and reasonable for the appropriate prosecution of the legal action.

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

14.9 We shall be entitled to sell the goods subject to retention of title taken back to entrepreneurial customers on a discretionary basis and at the best possible price.

15 Third Party Property Rights

15.1 If the customer contributes intellectual creations or documents and if third party industrial property rights are asserted with regard to such creations, we shall be entitled to stop the production 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 obvious.

15.2 The customer shall indemnify and hold us harmless in this respect.

15.3 We shall be entitled to demand reasonable advances on costs from entrepreneurial customers for any legal costs. 

16 Our intellectual property

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

16.2 The use of such documents outside the intended use, in particular the passing on, duplication, publication and making available, including copying even of extracts, shall require our express consent.

16.3 The customer further undertakes to maintain secrecy in relation to third parties in respect of the knowledge acquired by him as a result of the business relationship.

17 Warranty

17.1 The warranty period for our services towards entrepreneurial customers is one year from handover.

17.2 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 control of the service or has refused to take control without giving reasons.

17.3 Remedies of a defect alleged by the customer do not constitute an acknowledgement of the defect alleged by the customer.

17.4 The entrepreneurial customer shall grant us at least two attempts to remedy the defect.

17.5 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.

17.6 The entrepreneurial customer must always prove that the defect was already present at the time of handover.

17.7 Defects in the delivery item which the entrepreneurial customer has discovered or would have discovered in the ordinary course of business after delivery shall be notified.

17.8 Any use or processing of the defective object of performance which threatens further damage or makes it difficult or impossible to determine the cause shall be discontinued by the customer without delay, unless this is unreasonable.

17.9 If a notice of defect is not made in due time, the goods shall be deemed to have been approved.

17.10. The defective delivery or samples thereof shall be returned to us by the entrepreneurial customer – insofar as this is economically justifiable.

17.11. The costs of returning the defective goods to us shall be borne in full by the entrepreneurial customer.

17.12. The customer shall be obliged to enable us to determine the defect without delay.

17.13. The warranty shall be excluded if the customer’s technical equipment, such as supply lines, cabling, etc., is not in a technically flawless and operational condition or is not compatible with the delivered items, insofar as this circumstance is causal for the defect.

18 Liability

18.1 We shall be liable for breach of contractual or pre-contractual obligations, in particular due to impossibility, delay etc. in the case of financial loss only in cases of intent or gross negligence.

18.2 Apart from personal injury, we shall only be liable to entrepreneurial customers if we can be proven to have acted with gross negligence. The liability towards entrepreneurial customers is also limited to the maximum liability amount of any liability insurance concluded by us.

18.3 This limitation shall also apply with regard to damage to an item which we have accepted for processing. However, this shall only apply to consumers if this has been negotiated in an individual contract.

18.4 Claims for damages by entrepreneurial customers must be asserted in court within six months of knowledge of the damage, otherwise they shall be forfeited.

18.5 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.

18.6 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.

18.7 If and to the extent that the customer can claim insurance benefits for damages for which we are liable through a damage insurance policy of its own or concluded in its favour (e.g. liability insurance, hull insurance, transport, fire, business interruption and others), the customer undertakes to claim the insurance benefit and our liability shall be limited to the disadvantages incurred by the customer as a result of claiming this insurance (e.g. higher insurance premium). 

19 Severability clause

19.1 Should individual parts of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining parts.

19.2 We, as well as the entrepreneurial customer, undertake at this point to jointly agree on a substitute provision that comes as close as possible to the economic result of the ineffective provision, based on the understanding of honest contracting parties. 

20 General

20.1 Austrian law shall apply. 

20.2 The UN Convention on Contracts for the International Sale of Goods is excluded.

20.3 Place of performance is the registered office of the company (Vienna).

20.4 The place of jurisdiction for all disputes arising from the contractual relationship or future contracts between us and the entrepreneurial customer is the court with local jurisdiction for our registered office.