General Terms and Conditions
1.) Application of the General Terms and Conditions and deviations
a) The following general terms and conditions shall apply to all present and future contracts between the customer and KÄLTE- UND SYSTEMTECHNIK GMBH.
b) Deviations from the present conditions and in particular also any of the customer´s conditions shall only apply insofar as they have been accepted and confirmed in writing by KÄLTE- UND SYSTEMTECHNIK GMBH.
c) The customer´s purchasing or other terms and conditions shall not apply even if they remain uncontested by KÄLTE- UND SYSTEMTECHNIK GMBH. Such conditions, as well as Austrian standards, only apply insofar as their validity has been expressly agreed, but even then only insofar as they neither contradict the concrete contractual provisions nor these Terms and Conditions.
d) If the contracts are concluded with consumers within the meaning of the [Austrian] Consumer Protection Act (KSchG), the mandatory provisions of this Act shall take precedence over the following General Terms and Conditions.
e) The General Terms and Conditions shall take precedence over the statutory provisions and the applicable standards, unless otherwise provided for under mandatory law. Technical and commercial documents prepared by KÄLTE- UND SYSTEMTECHNIK GMBH are the intellectual property of this company. Their passing on to third parties is not permitted and KÄLTE- UND SYSTEMTECHNIK GMBH is entitled to claim damages in such case.
2.) Project planning, offers, order confirmations, ancillary agreements
a) Any necessary approvals by third parties, notifications to authorities and obtaining of approvals must be arranged by the customer at his own expense and made available to KÄLTE- UND SYSTEMTECHNIK GMBH. ‘
b) If the planning and execution of the project is not carried out on site due to the actual dimensions, the customer undertakes to provide written plans. KÄLTE- UND SYSTEMTECHNIK GMBH assumes no liability for incorrect information provided by the customer, nor for any resulting defects.
c) Cost estimates and offers are generally non-binding. The contract is concluded after receipt of the order by written order confirmation on the part of KÄLTE- UND SYSTEMTECHNIK GMBH.
d) If a cost estimate is provided under guarantee of its correctness, it is liable for payment and shall be invoiced in accordance with the scale of fees for civil engineers.
e) If services such as chiselling, plastering, construction, plumbing, tiling and carpentry work, scaffolding, electrical and water installations including condensation water drainage, removal of debris, freight, transport, necessary disposal of coolants, oils or other substances, as well as parts of systems and equipment etc. are not expressly listed in the cost estimate or in the offer, these will be invoiced separately, insofar as the aforementioned work actually arises.
f) Agreements must be made in writing; ancillary agreements that are not in written form shall be deemed not to have been made.
g) Verbal statements / promises made by of KÄLTE- UND SYSTEMTECHNIK GMBH employees are not binding; These are not entitled to make promises deviating from the written conditions.
h) KÄLTE- UND SYSTEMTECHNIK GMBH retains the indicated prices for its customers for two months from their announcement or from acceptance of the offer. If more than two months elapse between price announcement and delivery, KÄLTE- UND SYSTEMTECHNIK GMBH is entitled to accordingly pass on any price increases that have occurred in the meantime as a result of collective wage increases or other costs necessary for the provision of services, such as those for materials, energy, transport, external work, financing, etc. In return, price reductions of these factors shall be passed on to customers.
3.) The placing of orders and performance of services
a) The type and scope of the agreed service shall result, in writing, from the order confirmation and these General Terms and Conditions.
b) Additional work requested by the customer and not included in the order or repeatedly required performance of services – for example after damage by the customer or third parties – likewise overtime, night hours and other additional operating costs demanded by the customer, shall be charged separately in accordance with the collective agreement or statutory surcharge and shall be paid separately by the customer.
c) Deviations, changes and additions to the order require the written confirmation of KÄLTE- UND SYSTEMTECHNIK GMBH.
d) KÄLTE- UND SYSTEMTECHNIK GMBH is obliged to execute the order as soon as all technical and contractual details have been clarified and the customer has fulfilled his obligations and has also created the structural, technical and legal prerequisites for its execution.
e) KÄLTE- UND SYSTEMTECHNIK GMBH undertakes to properly carry out the order placed with it in accordance with generally recognised good engineering practices and the principles of economic efficiency. KÄLTE- UND SYSTEMTECHNIK GMBH reserves the right to make changes in technical matters in the course of the performance of services, insofar as these are reasonable for the customer and guarantee execution to an equivalent quality.
f) The dispatch of ordered goods, equipment and the like is always at the expense and risk of the customer. Transport insurance shall only be taken out upon the express instructions of the customer and only at the customer's expense.
g) Cancellations of goods ordered in writing from the standard range that have not yet been delivered to the customer will be accepted with a cancellation fee of 25% of the gross order value. The cancellation fee is due upon delivery of the invoice.
h) The return of delivered goods is only possible if the goods are in their original packaging. In the case of custom-made products and goods that are not listed in the standard range, return is generally not possible.
4.) Performance deadlines and performance dates
a) If performance is delayed due to circumstances beyond the control of KÄLTE- UND SYSTEMTECHNIK GMBH, for example because a supplier does not deliver to schedule, agreed deadlines and periods shall be postponed without any agreed penalty becoming due.
b) Only in the case of a delay in performance for which KÄLTE- UND SYSTEMTECHNIK GMBH is responsible is the customer free to withdraw from the contract after setting a reasonable period of grace, which may under no circumstances be less than 4 weeks. Any other or further claims of any kind are excluded, unless KÄLTE- UND SYSTEMTECHNIK GMBH is guilty of gross negligence or intent in the delay in delivery.
a) KÄLTE- UND SYSTEMTECHNIK GMBH shall inform the customer/ordering party in a timely manner of the date of handover of the service provided. If the customer/ordering party fails to comply with the handover date notified to him, the takeover shall be deemed to have taken place on this day.
b) Commissioning at the customer´s/ordering party's company is deemed to have taken place.
6.) Transfer of risk
a) All risks - including those of accidental loss – are transferred to the customer/customer at the time of performance. For assembled systems this is usually the point of completion by KÄLTE- UND SYSTEMTECHNIK GMBH. In the case of delivery ex-works, this is the handover to the freight forwarder or receipt of the notification of readiness for dispatch plus an appropriate collection period. At the time of performance, the object of purchase within the meaning of § 6 of the Product Liability Act has been transferred to the ordering party's power of disposal and thus brought into circulation.
b) Commissioning at the customer's/customer's company is deemed to be completion/handover.
7.) Warranty, compensation, transfer of risk
a) If the customer/ordering party is a consumer within the meaning of the Consumer Protection Act, the relevant statutory provisions shall apply to the warranty, insofar as these are mandatory. If the customer/ordering party is a company or if mandatory legal provisions are lacking, the following regulations shall apply exclusively.
b) KÄLTE- UND SYSTEMTECHNIK GMBH warrants to the customer/ordering party that fulfils its obligations that the services provided shall be free of defects. The warranty always expires 1 year after delivery and there are no further claims.
c) Warranty claims can only be made after notification of defects, which must be made exclusively by registered letter within 14 days of delivery of the service or partial service.
d) Justified claims for the remedying of defects or subsequent completion of omitted work shall take precedence over all other legal remedies, in particular a claim for price reduction and rescinding of the contract. The reasonable period for remedying justified defects shall be at least one third of the period agreed for the performance of the defective service. A claim for damage caused by delay within this period is excluded.
e) If a claim is made under the warranty, the warranty period is neither interrupted nor hindered, nor is the commencement of a new warranty period triggered.
f) The auxiliary personnel, lifting devices and services, scaffolding and the like required to remedy defects at the installation site or on the premises of the customer/ordering party shall be provided by the customer/ordering party free of charge.
g) KÄLTE- UND SYSTEMTECHNIK GMBH is entitled to charge the travel costs for the justified remedy of defects and the customer undertakes to pay these costs after invoicing.
h) If the defect cannot be remedied at the installation site or the on the premises of the customer/ordering party, the defective part or the defective device must be sent to KÄLTE- UND SYSTEMTECHNIK GMBH at the cost and risk of the customer/ordering party in accordance with the instructions of KÄLTE- UND SYSTEMTECHNIK GMBH.
i) Warranty claims expire if areas of the service/goods affected by the defect have been modified or repaired by third parties or by the customer/ordering party himself.
j) KÄLTE- UND SYSTEMTECHNIK GMBH reserves the right to decide for itself whether the defective device or component will be repaired or replaced by a new device or component.
k) If the term "warranty" has been used between the parties to the contract, this shall always mean warranty in accordance with this agreement.
a) KÄLTE- UND SYSTEMTECHNIK GMBH is only liable for damages of any kind – with the exception of personal injury – including any damages resulting from performance or non-performance of the contract, from tortious acts or omissions and from defects (consequential damage caused by a defect) if KÄLTE- UND SYSTEMTECHNIK GMBH, or companies commissioned by KÄLTE- UND SYSTEMTECHNIK GMBH, have caused such damages grossly negligently or intentionally.
b) Any further claims for damages are excluded.
c) Claims arising from product liability are not affected by this.
9.) Fees / Prices:
a) The prices are understood to be unpacked and unloaded ex KÄLTE- UND SYSTEMTECHNIK GMBH works or those of their suppliers and / or domestic sub-suppliers.
b) Work costs will be charged according to the respective valid KÄLTE- UND SYSTEMTECHNIK GMBH rates, as well as travel expenses, allowances and the like.
c) In the case of mismeasurement, the determination of the measurements shall be carried out in the presence of the customer/ordering party or a representative named by him. If, despite timely invitation, this remains far from the measurement determination, the measurements determined by KÄLTE- UND SYSTEMTECHNIK GMBH shall be deemed correct. The measurement can also be drawn in a plan provided on site, whereby the costs of this plan are borne by the customer/ordering party.
d) If cost factors of KÄLTE- UND SYSTEMTECHNIK GMBH, such as purchase prices, customs duties, wages, social charges, taxes and the like, increase between conclusion of the contract and completion, these increases – unless price increases have been expressly excluded in writing – shall be borne by the customer/ordering party.
e) Fixed and lump-sum price promises shall only be binding insofar as they have been agreed in writing.
10.) Payment and late payment
a) KÄLTE- UND SYSTEMTECHNIK GMBH is entitled to demand downpayments of an appropriate amount (at least 1/3 of the gross order sum) before commencement of performance.
b) The customer/ordering party must make partial payments at the request of KÄLTE- UND SYSTEMTECHNIK GMBH in accordance with the progress of the performance of services.
c) The withholding of payments due to defects which do not significantly impair the function or use of the delivery item (system, device, etc.) is inadmissible and excluded.
d) In the event of default of payment by the customer/ordering party, KÄLTE- UND SYSTEMTECHNIK GMBH is entitled to demand reimbursement of interest and expenses to the sum of that which it is charged itself in the course of loans that it has taken out, however a minimum of 11% of the gross order amount, without prejudice to any further claims.
e) n the event of default of payment by the customer/ordering party, KÄLTE- UND SYSTEMTECHNIK GMBH is entitled to demand immediate payment of the total price and, in the event that the customer/ordering party fails to meet his obligation to pay, to take back the systems/goods, devices and the like in his retention of title – without this being equivalent to withdrawal from the contract – irrespective of any other rights.
f) In case of default of payment, the customer/ordering party is obliged to reimburse KÄLTE- UND SYSTEMTECHNIK GMBH for all costs caused by the assertion of the claim, such as in particular reminder fees and the costs of a licensed collection agency, but also the costs of a lawyer called upon for collection.
g) The term of payment begins with the invoice date = date of posting. Payment must reach the account of KÄLTE- UND SYSTEMTECHNIK GMBH by the end of the payment term.
h) The offsetting of claims of the customer/ordering party with claims of KÄLTE- UND SYSTEMTECHNIK GMBH is excluded. This does not apply in the event of the insolvency of KÄLTE- UND SYSTEMTECHNIK GMBH or for counterclaims which have been determined in court or recognised by KÄLTE- UND SYSTEMTECHNIK GMBH.
11.) Withdrawal from the contract
a) Withdrawal from the contract is only permissible for good cause.
b) If KÄLTE- UND SYSTEMTECHNIK GMBH is in default with a service, the customer/ordering party may only withdraw from the contract after setting a reasonable grace period. The grace period shall be set by registered letter.
c) KÄLTE- UND SYSTEMTECHNIK GMBH is entitled to withdraw from the contract if the customer/ordering party is in default with a partial performance or an agreed cooperation activity which makes the execution of the order by KÄLTE- UND SYSTEMTECHNIK GMBH impossible or significantly impedes it.
d) If KÄLTE- UND SYSTEMTECHNIK GMBH is entitled to withdraw from the contract, KÄLTE- UND SYSTEMTECHNIK GMBH retains the right to the entire agreed remuneration, likewise in the event of unjustified withdrawal by the customer/ordering party. In the event of justified withdrawal from the contract by the customer/ordering party, KÄLTE- UND SYSTEMTECHNIK GMBH shall pay for the services already rendered by KÄLTE- UND SYSTEMTECHNIK GMBH.
e) KÄLTE- UND SYSTEMTECHNIK GMBH is only obliged to perform the service as soon as the customer has fulfilled all its obligations which are necessary for execution. The required lighting and power current must be provided by the customer.
12.) Obligations of the customer/ordering party
a) The customer/operator of the equipment and systems must follow the instructions in the operating instructions and ensure regular maintenance by KÄLTE- UND SYSTEMTECHNIK GMBH or a specialist company. The system and the equipment must be kept clean and subjected to regular, professional cleaning.
b) During operation of the systems and equipment, inspections must be carried out regularly by appropriately trained employees of the customer/operator in accordance with the instructions in the operating manual and KÄLTE- UND SYSTEMTECHNIK GMBH must be notified immediately in the event of a fault.
c) The customer/operator shall make the systems and the devices accessible at any time for the elimination of malfunctions by KÄLTE- UND SYSTEMTECHNIK GMBH or an assigned subcontractor.
d) The customer must provide KÄLTE- UND SYSTEMTECHNIK GMBH free of charge with lockable rooms for the workers' stay as well as for the storage of machines, tools and materials for the time of performance of the service until the contractually agreed service is handed over and to supply the energy and quantity of water required for performance including trial operation, free of charge.
13.) Use of the work, advertising stickers and company address
a) KÄLTE- UND SYSTEMTECHNIK GMBH is entitled to affix company labels and advertising stickers free of charge on the devices and plant components supplied by it. Should these stickers become loose or damaged in the course of time due to the weather, KÄLTE- UND SYSTEMTECHNIK GMBH is permitted to exchange them at its own expense.
b) By placing an order with KÄLTE- UND SYSTEMTECHNIK GMBH, the customer/ordering party irrevocably agrees that KÄLTE- UND SYSTEMTECHNIK GMBH may photograph and publish for advertising purposes, e.g. homepage or reference systems, the systems or devices supplied and assembled by it in the installed condition.
c) By placing an order with KÄLTE- UND SYSTEMTECHNIK GMBH, the customer/ordering party agrees that the aforementioned company may send them advertising material, information about innovations and offers.
a) In the event of premature termination of a maintenance contract, KÄLTE- UND SYSTEMTECHNIK GMBH is entitled to demand the outstanding claims as a penalty until the end of the contract period. In such case, KÄLTE- UND SYSTEMTECHNIK GMBH is not obliged to provide the services.
b) Defects are not accepted as grounds for termination, however must be remedied by KÄLTE- UND SYSTEMTECHNIK GMBH.
c) In case of default of payment, the term of payment for subsequent orders is automatically set to prepayment or cash payment.
15.) Retention of title
a) All delivered and assembled systems and equipment remain the property of KÄLTE- UND SYSTEMTECHNIK GMBH until full payment has been received.
b) KÄLTE- UND SYSTEMTECHNIK GMBH must be notified immediately of access by third parties to the reserved property (seizure or other court or official orders, etc.). The customer/ordering party must take all measures to eliminate such access. The latter shall bear the associated costs and shall indemnify and hold KÄLTE- UND SYSTEMTECHNIK GMBH harmless, insofar as it is responsible for this access by third parties.
c) The customer/ordering party is prohibited from pledging or other legal disposal of the reserved property without the consent of KÄLTE- UND SYSTEMTECHNIK GMBH.
16.) Data storage
According to § 23 of the Data Protection Act KÄLTE- UND SYSTEMTECHNIK GMBH hereby informs that the following data will be used automatically for accounting purposes and for planning and deadline processing: Name (in relabelling), address, telephone number, fax number and email address, order, order and invoice data, delivery and payment conditions, turnover. This data is used by Klimatechnik Klement GmbH within the framework of legal regulations and its employees are obliged to observe data secrecy in accordance with § 20 Data Protection Regulation.
17.) Choice of law
For contracts between customer/ordering party and KÄLTE- UND SYSTEMTECHNIK GMBH exclusively Austrian law, as well as the standards valid in Austria are applicable, as far as these are not in contradiction with the present GTC.
18.) Place of performance
Place of performance for all technical assembly services is the place described in the offer. Place of performance for other services (goods and services without assembly) is the registered office of KÄLTE- UND SYSTEMTECHNIK GMBH.
19.) Place of jurisdiction
The place of jurisdiction for all disputes arising from the business relationship is the competent court in St. Pölten.
20.) Severability clause
Should one or more provisions of these contractual conditions be invalid, this shall not affect the validity of the remaining provisions. The parties agree that the invalid provision shall be replaced by an agreement which corresponds to the content and purpose of the invalid provision of the contract.