General Terms and Conditions of Business GTC
MHS – Messtechnik Hardware Software GmbH
1.1. These General Terms and Conditions (hereinafter referred to as GTC) are generally designed for legal transactions between companies. Should they exceptionally also be used as a basis for legal transactions with consumers within the meaning of the Consumer Protection Act, they shall only apply insofar as they do not contradict mandatory provisions.
1.2. These GTC apply to all legal transactions and legal relationships between the client and the contractor, for example not only to the first legal transaction, but the application of the GTC is also expressly agreed for all additional and subsequent orders as well as further transactions.
1.3. Purchasing or other terms and conditions of the client shall not be valid and are hereby expressly rejected. The contractor expressly declares that it only wishes to contract based on its GTC. If, by way of exception, the application of the client’s GTC is agreed in writing, their provisions shall only apply insofar as they do not conflict with these GTC. Provisions in the GTC that do not conflict shall remain in force alongside each other.
1.4. The client declares that he or she had the opportunity to take note of the content of the GTC before the conclusion of the contract and that he or she agrees with their content.
1.5. Amendments and supplements to these GTC must be made in writing to be legally effective. This written form requirement may also only be waived in writing. It is noted that there are no ancillary agreements.
2. Offers, conclusion of contract
2.1. Offers of the contractor are subject to change and non-binding.
2.2. The contractor accepts offers or orders of the client by written order confirmation or by delivery of the object of purchase or by performance of the service.
2.3. Information about the contractor’s services and products contained in catalogues, price lists, brochures, company information material, leaflets, advertisements on trade fair stands, in circulars, advertising mailings or other media shall be non-binding unless expressly declared in writing to be part of the contract.
2.4. The contractor’s cost estimates are always prepared without guarantee for completeness and correctness.
3. Delivery/Service Deadlines
3.1. Delivery/service deadlines are non-binding unless they have been expressly agreed in writing as such in the order confirmation or in the individual contract.
3.2. If, for whatever reason, the order is amended or supplemented after the order has been placed, the delivery/service deadline shall be extended by a reasonable period of time.
3.3. In the absence of any agreement to the contrary, the delivery period shall commence at the earliest on the latest of the following dates: a) date of order confirmation b) date of fulfilment of all technical, commercial, and other preconditions incumbent on the client c) date on which the contractor receives an agreed advance payment or security deposit.
3.4. If the contractor is prevented from fulfilling his obligations by the occurrence of unforeseeable circumstances or circumstances for which the contractor is not responsible, such as operational disruptions, sovereign measures and interventions, energy supply difficulties, failure of a supplier who is difficult to replace, strike, obstruction of transport routes, delay in customs clearance or force majeure, the delivery/performance period shall be extended to a reasonable extent. It is irrelevant whether these circumstances occur at the contractor itself or at one of its suppliers or subcontractors.
3.5. If the fulfilment of the contract becomes impossible for reasons for which the contractor is not responsible, the contractor shall be released from its contractual obligations.
3.6. The contractor shall be entitled to make and invoice partial or advance deliveries. If delivery on call has been agreed, the service/purchase item shall be deemed to have been called at the latest six months after the order.
4.1. If an order is placed without a prior quotation or if services are performed which were not expressly included in the order, the contractor may claim the remuneration which corresponds to his price list or his usual remuneration.
4.2. The contractor is entitled to demand a higher fee than the agreed fee or purchase price if the calculation bases existing at the time the order was placed, such as raw material prices, the exchange rate, or personnel costs, change after the conclusion of the contract.
4.3. All prices and charges are 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. Packaging shall only be taken back if expressly agreed.
4.4. Unless otherwise agreed, half of the payment/purchase price shall be due upon receipt of the order confirmation and the remainder upon delivery or readiness for collection as well as upon receipt of the invoice and free of charges and deductions.
4.5. A payment is on time if the contractor can dispose of it. Payment dedications of the customer, e.g., on remittance slips, are not binding.
4.6. In the event of default in payment, the currently valid base rate plus 4% p.a. shall be agreed. Should the contractor claim interest in excess of this, he shall be entitled to demand this as well. Expedient and necessary costs incurred by the delay in payment, such as expenses for reminders, collection attempts, storage costs and any court or out-of-court lawyer’s fees shall be reimbursed to the contractor.
4.7. The benefits agreed upon conclusion of the contract, such as discounts and rebates, are granted on condition of timely and complete payment. In the event of a delay in even only a partial performance, the contractor shall be entitled to subsequently charge for this.
4.8. The assertion of a right of retention and plea of non-performance of the contract by the contractor in the case of alleged defects is excluded. Offsetting by the client with counterclaims or with alleged price reduction claims is only permissible if the claim has been legally established or is not disputed by the contractor.
4.9. If the client is in default with an obligation arising from the contractual relationship or any other payment obligation towards the contractor, the contractor shall be entitled, without prejudice to any other rights, to suspend its obligation to perform until payment by the client and/or to claim a reasonable extension of the delivery period; to declare all outstanding claims arising from this or other legal transactions due and payable and, if applicable, to collect delivered items again, without this releasing the client from its obligation to perform. These actions shall only constitute a withdrawal from the contract by the contractor if this has been expressly declared.
4.10. Should the financial circumstances of the client deteriorate, the contractor shall be entitled to demand immediate payment of the agreed remuneration or the purchase price and to execute the order only against advance payment.
4.11. If a periodically chargeable fee, e.g., for service or maintenance services, is agreed, this shall be due annually at the beginning of a calendar year. If the contract begins or ends during a year, this fee shall be due on a pro rata basis. This fee is value-assured according to the 1996 consumer price index, whereby the month in which the service or maintenance contract was concluded serves as the starting point. If the CPI 1996 is no longer published, it shall be replaced by the CPI that follows or most closely corresponds to it. Furthermore, the contractor is entitled to adjust a periodically chargeable fee for the reasons stated in point.
4.12. Costs for travel, daily and overnight allowances shall be invoiced separately in the case of periodically chargeable remuneration. Travel time shall be considered as working time.
5. Transfer of risk and shipment
5.1. he risk shall pass to the contractor as soon as the contractor holds the object of purchase/work ready for collection at the factory or warehouse, irrespective of whether the items are handed over by the contractor to a carrier or transporter. Shipment, loading, unloading and transport shall always be at the risk of the client.
5.2. The client shall approve any appropriate mode of shipment. Transport insurance shall only be taken out upon written order of the contractor.
5.3. The contractor shall be entitled to have the packaging and shipping costs as well as the remuneration or the purchase price collected from the customer on a cash on delivery basis if the financial circumstances of the customer deteriorate, or a credit limit agreed with the contractor is exceeded.
5.4. The place of performance shall be the contractor’s factory.
6. Retention of title and right of retention
6.1. All goods and products remain the property of the contractor until full payment has been made by the client, even if the items to be delivered or manufactured are resold, modified, processed, or mixed.
6.2. The object of performance/purchase may not be pledged, transferred by way of security, or otherwise encumbered with the rights of third parties until all claims of the contractor have been paid in full. In the event of seizure or other claims, the client is obliged to point out the contractor’s right of ownership and to inform the contractor immediately.
6.3. The client hereby assigns all claims and rights to which he is entitled from the resale, processing, mixing or other exploitation of the goods and products on account of payment. Until full payment of the remuneration or purchase price, the contractor shall note this assignment in his books and on his invoices and inform his debtors of this assignment. Upon request, he shall provide the contractor with all documents and information necessary for the assertion of the assigned claims and entitlements.
6.4. To secure its claims and to secure claims from other legal transactions, the contractor shall be entitled to retain the products and goods until all outstanding claims from the business relationship have been settled.
7. Obligations of the client
7.1. In the case of assembly by the contractor, the client is obliged to ensure that the work can be started immediately after the arrival of the contractor’s assembly personnel.
7.2. The client is liable for ensuring that the necessary technical prerequisites for the work to be produced or the object of purchase are in place and for ensuring that the technical installations, such as supply lines, cabling, networks, and the like are in a technically flawless and operational condition and compatible with the work to be produced or the objects of purchase to be produced by the contractor. The contractor is entitled, but not obliged, to inspect these facilities for a separate fee.
7.3. The contractor shall not be obliged to check, warn, or clarify any documents, information or instructions provided by the client and shall not be liable in this respect.
7.4. The order shall be placed irrespective of any official permits and authorisations that may be required and which the client must obtain.
7.5. The client is not entitled to assign claims and rights arising from the contractual relationship without the written consent of the contractor.
he warranty period is limited to six months and begins from the transfer of risk within the meaning of these GTC. This also applies to delivery and service items that are firmly connected to a building or land.
A warranty is excluded if the technical installations, such as supply lines, cabling, networks, and the like are not in a technically flawless and operational condition or are not compatible with the works or objects of purchase to be produced by the contractor.
8.3. No warranty claims shall exist in the event of defects caused by improper handling or overloading, if statutory operating or installation instructions or those issued by the contractor are not followed; if the delivery item was produced based on the client’s specifications and the defect is attributable to these specifications or drawings; in the event of faulty assembly or commissioning by the client or third parties. incorrect assembly or commissioning by the customer or third parties, natural wear and tear, transport damage, improper storage, operating conditions that interfere with the function (e.g., insufficient power supply), chemical, electrochemical or electrical influences, failure to carry out necessary maintenance or poor maintenance.
8.4. Notifications of defects and complaints of any kind must be made in writing without delay, stating the possible causes, otherwise the warranty claims will be forfeited. Notifications of defects and complaints made orally, by telephone or not immediately shall not be considered. After an agreed acceptance has been carried out, the notification of defects that were detectable during the acceptance shall be excluded.
8.5. Notices of defects and complaints shall be made at the contractor’s registered office, describing the defect as precisely as possible, and the client shall hand over the goods or work performances complained of, if the latter is feasible.
8.6. The contractor is entitled to carry out or have carried out any examination he deems necessary, even if this renders the goods or workpieces unusable. If this examination shows that the contractor is not responsible for any defects, the client shall bear the costs of this examination for a reasonable fee.
8.7. If the objects of performance are manufactured based on information, drawings, plans, models or other specifications of the client, the contractor shall only provide a warranty for the execution in accordance with the conditions.
8.8. If the client makes changes to the delivered object of purchase or works without the prior written consent of the contractor, the contractor’s warranty obligation shall expire.
8.9. When asserting secondary warranty claims, the contractor shall be entitled, at its discretion, to avert a claim for redhibitory action by a claim for a price reduction, unless the defect is substantial and irremediable.
8.10. The client must also prove the existence of a defect at the time of handover during the first six months after handover of the item/work.
8.11. All costs incurred in connection with the rectification of defects, such as transport, installation, removal, and travel costs, shall be borne by the client. At the request of the contractor, the client shall provide the necessary labour free of charge.
9. Liability and product liability
9.1. The contractor shall only be liable for damage caused intentionally or by gross negligence. Liability for slight negligence is excluded. The fault of the contractor must be proven by the client.
9.2. Liability for indirect damage, consequential damage, loss of profit, financial loss, damage due to business interruption, loss of data loss of interest as well as damage due to third party claims against the client is excluded in any case.
9.3. Any liability of the contractor is in any case limited to the amount of the agreed remuneration or the purchase price for the respective order. Contracts assumed by the contractor shall only be assumed subject to this limitation of liability. Any further liability of the contractor is expressly excluded. If the total damage exceeds the maximum limit, the claims for compensation of individual injured parties shall be reduced proportionately.
9.4. The client shall inform the contractor immediately of any defects discovered in the goods or the work, otherwise any claims shall be forfeited. Claims for damages shall in any case be asserted in court within six months in the event of any other forfeiture.
9.5. The client may initially only demand improvement or replacement of the item/work as compensation for damages; only if both are impossible or are associated with disproportionate expense for the contractor may the client demand immediate monetary compensation.
9.6. Liability is generally excluded in the event of non-compliance with any conditions for assembly, commissioning and use or the official approval conditions. The client is obliged to ensure that all users comply with the operating instructions for the delivered goods or works. In particular, the client shall train and instruct his personnel and other persons who come into contact with the delivered goods or works accordingly.
9.7. The liability to pay compensation for property damage resulting from the Product Liability Act as well as product liability claims that can be derived from other provisions are excluded to the extent that this is legally possible. The client is obliged to transfer the exclusion of liability for product liability claims to his possible contractual partners. Any recourse of the client against the contractor arising from a claim under the Product Liability Act shall be excluded. The client shall take out sufficient insurance for product liability claims and indemnify and hold the client harmless in this respect.
10. Early termination of the contract and error
10.1. If a delivery/service is not possible for reasons for which the client is responsible or if a client does not comply with a legal or contractual obligation incumbent on him towards the contractor, the contractor is entitled to withdraw from the contract. In this case, the client shall compensate the contractor for all resulting disadvantages and lost profit.
10.2. The client waives the right to contest/adjust this contract on the grounds of error.
11. Industrial property rights
11.1. The client shall be liable for ensuring that any design details, drawings, models or other specifications handed over for production do not infringe the industrial property rights of third parties. In the event of any infringement of industrial property rights, the client shall indemnify and hold harmless the contractor.
11.2. Software, execution documents, such as plans, sketches and other technical documents, as well as samples, catalogues, brochures, illustrations, and the like shall remain the intellectual property of the contractor and shall enjoy copyright protection. Any reproduction, dissemination, imitation, processing or exploitation and the like not expressly granted shall be inadmissible.
12.1. If the object of performance/purchase also includes software components or computer programs, the contractor shall grant the client a non-transferable and non-exclusive right of use at the agreed place of installation regarding these in compliance with the contractual conditions and documents (e.g., operating instructions, etc.).
12.2. Without the prior written consent of the contractor, the client is not entitled – with the other exclusion of any claims – to duplicate, modify or make the software available to third parties or to use it for purposes other than those expressly agreed. This applies in particular to the source code.
12.3. A warranty regarding the software exists only for the conformity of the software with the specifications agreed upon conclusion of the contract, provided that the software is used in accordance with the installation requirements and complies with the respectively applicable conditions of use. The contractor does not warrant that the software is of flawless quality or that it will function uninterruptedly or without errors. The occurrence of errors cannot be excluded.
12.4. The selection and specification of the software offered by the contractor shall be made by the client, who shall ensure that it is compatible with the technical conditions on site. The client is responsible for the use of the software and the results achieved with it.
12.5. For software to be produced individually, the performance features, special functions, hardware and software requirements, installation requirements, conditions of use and operation result exclusively from the specifications to be agreed in writing between the contracting parties. The client shall provide the information required for the production of customised software before conclusion of the contract.
13.1. Should any provision of these GTC be or become invalid, this shall not affect the validity of the remaining provisions. Ineffective provisions shall be replaced by the contracting parties with a provision that comes as close as possible to the ineffective provision and is customary in the industry.
13.2. The place of jurisdiction for all disputes arising from the contractual relationship or future contracts between the contractor and the client is the court with local jurisdiction for the contractor’s registered office. The contractor shall also be entitled to take legal action at the client’s general place of jurisdiction.
13.3. The contracting parties agree on the application of Austrian law. The application of the UN Convention on Contracts for the International Sale of Goods is excluded by mutual agreement.
13.4. Änderungen seines Namens, der Firma, seiner Anschrift, seiner Rechtsform oder andere relevante Informationen hat der Auftraggeber dem Auftragnehmer umgehend schriftlich bekannt zu geben.
Status: December 20, 2021