These conditions apply to the takeover of maintenance work of all kinds, in particular also devices, machines and systems (hereinafter referred to as “services”) and only for legal transactions between companies. Unless otherwise agreed between the contracting parties, ÖNORM EN 13306 in the version of October 1, 2010 “Maintenance – Terms, Definitions and Measures” applies.
2. Conclusion of the contract
2.1 The conditions of the contractor apply exclusively, other conditions and deviations from the conditions of the contractor require his express written confirmation to be effective.
2.2 The contract is concluded if the contractor has sent a written order confirmation or a delivery after receiving the order.
2.3 Neither warranty claims nor liability can be derived from information in catalogs, brochures, advertising material and written or oral statements that have not been included in the contract.
2.4 Subsequent changes and additions to these conditions require written confirmation to be valid.
3. Billing of services
Unless otherwise agreed, the services will be charged according to time and effort (direction). After a written agreement, settlement at a flat rate is also possible. Unless expressly agreed otherwise, the services are rendered during the contractor’s normal business hours.
3.1 Services by direction
The services of the contractor are invoiced as follows:
Remuneration for personnel: The client certifies the personnel of the contractor the working time spent by confirming working hours. The working time begins on arrival and ends when the staff at the client’s site leave. If the client does not certify this without sufficient reason, the contractor’s records shall serve as the basis for billing. The agreed or set rates in the offer apply to the working time.
Spare parts: Spare parts installed by the contractor will be charged at cost.
3.2 Services at flat rates
The all-inclusive price covers the services agreed in writing by the contractor. It presupposes an unimpeded workflow and the timely completion of all necessary preliminary work by the client. The client bears any additional expenses incurred by the contractor due to circumstances for which he is not responsible, such as subsequent changes to the content or scope of the services, waiting times, etc.
3.3 Unless otherwise agreed, accommodation and travel expenses for the contractor’s staff are not included in the price and will be charged separately.
3.4 In case of doubt, an offer made by the contractor is non-binding.
3.5 If it turns out in the case of an order for repair that the repair cannot be carried out by the contractor, the contractor is entitled to invoice the costs for the troubleshooting carried out at cost.
3.6 The prices are exclusive of sales tax and, unless otherwise agreed, plus other taxes, duties and fees.
4.1 If the services are billed according to the direction, the prices to be billed will be invoiced after the services have been provided. For services whose duration exceeds one month after the calculation of the contractor, the invoice is made as a partial invoice at the end of each month. The lump sums agreed for recurring services (especially maintenance) are to be paid in advance for the agreed period.
4.2 Payments are to be made without any deduction to the contractor’s paying agent in the agreed currency. All related interest and expenses (such as collection and discount charges) are borne by the client. If the agreed payment dates are exceeded, the statutory default interest will be charged without prejudice to any other rights of the contractor. In the absence of any other agreement, invoices must be paid no later than 14 days after the invoice has been issued.
4.3 The client is not entitled to withhold or offset payments due to warranty claims or other claims.
4.4 A payment is deemed to have been made on the day on which the contractor can dispose of it.
4.5 If the customer is in arrears with an agreed payment or other service from this or other legal transactions, the contractor can be without prejudice to his other rights
a) postpone the fulfillment of his own obligations until this payment or other performance is effected and take a reasonable extension of the performance period,
b) make all outstanding claims from this or other legal transactions due and offset the statutory default interest plus sales tax for these amounts as of the respective due date, unless the contractor can prove any additional costs,
c) in the event of qualified insolvency, i.e. after two delays in payment, only perform other legal transactions against cash in advance.
d) terminate the contract with immediate effect with a grace period of 14 days. In any case, the contractor is entitled to invoice the client for pre-trial costs, in particular reminder fees and attorney’s fees in accordance with the legally applicable regulations.
4.6 The contractor has the right to send the invoice electronically.
5. Obligations of the client to cooperate
5.1 The client is obliged
a) to do everything necessary so that the services can be started on time and carried out without interruption,
b) to carry out any necessary on-site and other preparatory services professionally at his own expense and responsibility and to make all available documents available to the contractor in good time (e.g. system documentation, operating and control books). These documents remain the property of the client and may only be used by the contractor or his subcontractor for the purposes of the services.
c) to take the necessary accident prevention measures at his own expense. In particular, he will draw the attention of the contractor if special measures are to be taken to protect him or for the protection of third parties or if legal or administrative regulations have to be observed.
d) Before starting the services by the contractor, secure the parts of the plant that are being worked on and activate upstream or downstream parts. The contractor is entitled to refuse or interrupt services if security is not guaranteed.
e) fully insure workers he provides and assume any liability for such workers,
f) To provide spare parts or other aids in good time, if this has been agreed, and to check these together with the contractor for completeness and damage before starting the services (e.g. providing climbing aids including any safety devices in good condition).
g) to provide heatable or air-conditioned, lockable rooms and sanitary facilities for the contractor’s staff free of charge if required,
i) to inform the contractor about a temporary decommissioning of systems and about the occurrence of faults,
j) dismantled parts, insofar as they do not fall into the property of the contractor as a result of this agreement, to properly dispose of unneeded equipment and other waste at his own expense.
5.2 If the client does not meet his obligations, the contractor is entitled to refuse to provide the service and to withdraw from the contract in accordance with the legally applicable regulations. In any case, the client is liable for all damage (e.g. standing time, etc.) that the contractor incurs due to non-compliance with these obligations.
5.3 The contractor is authorized to process data of the system affected by the order with the aid of automation and to statistically evaluate it in neutralized form.
5.4 The contractor has the right to use subcontractors for all deliveries and service components if he reports this to the client.
6. Execution period
6.1 A deadline specified for completion is only binding if it has been expressly agreed as binding in writing.
6.2 The service is considered completed when the system is ready for use by the client or for testing, provided that the contract provides for testing.
6.3 If a deadline for the performance of the services is agreed between the client and the contractor, this deadline will be extended accordingly,
a) if unforeseeable circumstances or circumstances independent of the will of the party arise, such as all cases of force majeure, which hinder compliance with the agreed delivery period; this also includes in particular terrorism, armed conflicts, official interventions and prohibitions, delays in transport and customs clearance, damage in transit, lack of energy and raw materials, industrial disputes and the failure of a major one. difficult to replace suppliers. These aforementioned circumstances also entitle to an extension of the delivery period if they occur with suppliers.
b) if the client does not meet his obligations (especially those according to point 5.1). In any case, the period is extended by the duration of these circumstances.
6.4 If a case of force majeure (within the meaning of point 6.3 lit a) lasts longer than three months, each party is entitled to terminate the contract by written notice without the other party being able to derive claims for this reason.
7. Decrease in performance
7.1 The contractor must notify the client when the services have been completed. The client must then check the services immediately and then accept them. The client is not entitled to refuse acceptance due to minor defects.
7.2 If the acceptance of the services is delayed through no fault of the contractor, the acceptance shall be deemed to have taken place after two weeks, calculated from the notification of the completion of the service.
8. Termination and withdrawal from the contract
8.1 Each party is entitled to terminate the contract if the other party has failed to comply with a contractual provision within 30 days of receiving a written request from the other party to redress the violation to comply with this request.
8.2 If insolvency proceedings are opened against the assets of one of the contracting parties or if an application to initiate insolvency proceedings is rejected due to insufficient assets, the other contracting party is entitled to withdraw from the contract without setting a grace period. If this resignation is exercised, it becomes effective immediately with the decision that the company will not continue. If the company is continued, a withdrawal will not take effect until 6 months after the opening of insolvency proceedings or after rejection of the application for opening due to lack of assets. In any case, the contract is terminated with immediate effect, provided that the insolvency law to which the insolvent party is subject does not conflict or if the contract is essential to avert serious economic disadvantages of the contracting party of the insolvent party.
8.3 A contract termination according to paragraph 1 does not constitute liability for the party issuing the termination.
9. Retention of title
The contractor retains title to all supplied accessories, spare parts and replacement parts until all payments to be made under the contract plus interest and costs have been received.
10.1 The contractor is obliged to comply with the agreed terms of payment, in accordance with the following provisions, to remedy any malfunction affecting the functionality that exists at the time of delivery.
10.2 Defects discovered during the warranty period will be remedied by the contractor free of charge, provided that the client notifies the complaints in writing immediately, but no later than 14 days after discovery, at least within the warranty period, and that these defects are recognized in writing by the contractor as warranty defects. In this notice of defects, the defects must be described in such a concrete manner that an assessment of the defects and the cause is possible (including transmission of any electronic records relating to the defective part, the last maintenance record, the description of the measures already taken by the client, etc.)
10.3 If the services are interrupted for reasons for which the contractor is not responsible, the warranty period for the services performed before the interruption begins no later than 2 weeks after the start of the interruption.
10.4 Unless otherwise agreed, defects are excluded from the warranty that result from unsuitable arrangement and assembly, inadequate installation, non-compliance with installation requirements and conditions of use, overuse of the parts beyond the performance specified by the contractor, negligent or incorrect treatment and use of unsuitable defects Operating materials arise; this also applies to defects that can be traced back to material and spare parts provided by the customer. The contractor is also not liable for damage caused by actions by third parties, atmospheric discharges, overvoltages, chemical influences, accidents, fire, acts of God, natural disasters (earthquakes, hurricanes), power surges, power failures, terrorism. The guarantee does not apply to the replacement of parts that are subject to natural wear and tear. Furthermore, the contractor is not liable for deliveries and services of the client or third parties commissioned by him, on existing system parts (old systems) that are not covered by the contract. The warranty expires immediately if, without the written consent of the contractor, the customer himself or a third party not expressly authorized by the contractor changes or repairs the delivered items. When asserting a defect, the customer must prove that none of these circumstances exist.
10.5 Should it become apparent after the contractor has completed the defect detection and remedial work that the contractor does not have any warranty obligations in accordance with these warranty provisions, the client is obliged to replace the contractor’s services in accordance with the repair kit applicable at that time.
10.6 In the event of a defect, the contractor primarily has the right to make improvements.
10.7 The necessary auxiliary staff, lifting devices, scaffolding and small materials, etc. must be provided for warranty work in the customer’s company.
10.8 The provisions 10.1 to 10.7 apply mutatis mutandis to any liability for defects for other legal reasons.
11. Liability and insurance
11.1 The contractor is liable for damage that has arisen in the course of the performance of the system or the object, provided that he or his vicarious agents can be proven to have acted with intent or gross negligence, whereby this total liability in the case of gross negligence in total on the value of the order or for maintenance services with an annual fee for the agreed services is limited. The liability of the contractor for each damage event is limited to 25% of the net order value.
11.2 Unless otherwise agreed, liability for slight negligence, with the exception of personal injury, as well as compensation for consequential damage, pure financial loss, indirect, indirect damage, loss of production, downtime costs, financing costs, costs for replacement energy, loss of energy, data or information, loss of profit, savings not achieved, loss of interest and damage from claims by third parties against the contractor.
11.3 Unless otherwise agreed, any damages are excluded in the event of non-compliance with any conditions for assembly, commissioning and use (such as contained in operating instructions) or the official approval conditions.
11.4 If contractual penalties have been agreed, further claims of the client from the respective title are excluded.
11.5 The provisions of item 11 apply finally to all claims of the client against the contractor, regardless of the legal reason and title, and are also effective for all employees, subcontractors and subcontractors of the contractor.
11.6 If the contractor’s staff are used directly by the client for additional services, this is done exclusively at the risk of the client and to the exclusion of any liability on the part of the contractor.
Such use of the contractor’s staff by the client beyond the respective agreement is, however, dependent on the prior written consent on the part of the contractor and is based on a previously determined or generally applicable fee.
11.7 The client will include the contractor, its possible subcontractors and consortium partners, as well as the operational risks of the services to be provided by the contractor in its existing machine breakage and machine breakdown interruption insurance and have the insurance policy restricted in favor of the contractor. At the contractor’s written request, the client must submit a suitable written confirmation from his insurance company that all obligations under this article have been met, at the latest within seven working days of the request.
12. Assertion of claims
All claims of the client are to be asserted in court in the event of other claims being lost within 3 years from the performance of the services, unless mandatory statutory provisions provide for other deadlines.
13. Compliance with export regulations
13.1 When passing on the goods delivered by the contractor and the associated documentation, regardless of the manner in which they are made available or the services provided by the contractor, including technical support of any kind, to third parties, the customer must comply with the applicable national and international (re) export regulations. In any case, if the goods or services are passed on to third parties, the (re) export regulations of the contractor’s country of domicile, the European Union, the United Kingdom of Great Britain and Northern Ireland and the United States of America must be observed.
13.2 If required for export control tests, the client has the contractor with all necessary information immediately upon request, including about the final recipient, final destination and intended use of the goods or services.
14.1 If individual provisions of the contract or these conditions should be ineffective, the effectiveness of the remaining provisions is not affected. The ineffective provision is to be replaced by a valid one that comes as close as possible to the intended goal.
14.2 The German language version is the authentic version of the conditions and is also the one to be used for the interpretation of the contract.
15. Place of jurisdiction and law
The competent court at the contractor’s headquarters, in Vienna at the district court of the Inner City district, is solely responsible for deciding all disputes arising from the contract – including those regarding its existence or non-existence. The contract is subject to Austrian law excluding the referral standards. The application of the UNCITRAL United Nations Convention on Contracts for the International Sale of Goods is excluded.
16. Reservation clause
The fulfillment of the contract on the part of the contractor is subject to the condition that there are no obstacles due to national or international (re) export regulations, in particular no embargoes and / or other sanctions.