General Terms of Business
valid from 01. December 2016
For all business relations, services and commercial, artistic and scientific works of Dr. Florian Josef Gruber, hereafter referred to as the contractor, are exclusively subject to the following General Terms of Business, unless otherwise agreed in writing. These also apply to all future business relationships, even if they are not expressly agreed again. Contractual conditions or other terms and conditions of the contracting party are hereby expressly contradicted and these are not part of the contract. Changes to the terms and conditions of the contractor is approved if the contracting party does not object in writing within four weeks of receiving the copy of the amended version.
2 Scope of services
The performance of the contractual services by the contractor takes place, unless otherwise agreed, in the business premises of the contractor within the normal working hours of the contractor. If a service is provided outside normal working hours, the additional costs will be charged separately. The selection of the employee providing the contractual services is the responsibility of the contractor, who is entitled to use third parties for this purpose as well.
Offers are non-binding. Verbal information and pledges do not constitute an assurance or guarantee of any kind whatsoever. Deviations from the product or service are considered approved unless they are unreasonable for the contracting party. Changes in the course of technical progress are reserved.
A contract (order) with the client comes about only by acceptance of the contractor. The client waives an acceptance according to §864 ABGB. The sending of an invoice equals an order confirmation.
Cost estimates are generally non-binding, without warranty and for a fee, unless expressly stated otherwise in individual cases. The estimate is made to the best of our knowledge, but no guarantee can be given for its accuracy. Plans, sketches and technical documentation remain the intellectual property of the contractor. Any publication requires the express written consent of the contractor. In the case of the infringement, a contractual penalty is agreed, which is not to be regarded as a redemption amount. It is 50% of the total order amount. A damage exceeding the contractual penalty is to be additionally replaced.
All prices quoted or agreed by the contractor, unless expressly stated otherwise, are exclusive of VAT and duties. Price changes and errors are reserved. Orders for which fixed prices are not expressly agreed shall be charged at prices valid on the day of delivery or service. It is explicitly agreed value stability of the claim plus ancillary claims. Should the costs necessary for the provision of services change, the contractor is entitled to adjust the prices accordingly. The increases are deemed to be accepted by the client from the outset if they do not exceed 10% per annum.
The contractor reserves the right to invoice the agreed service by post or electronically by e-mail.
Unless otherwise agreed, invoices are payable without deduction and free of charge upon receipt of the invoice. Compliance with the agreed payment dates constitutes an essential condition for the performance of the delivery or fulfillment of the contract by the contractor. Failure to comply with the agreed payments shall entitle the contractor to cease the delivery or ongoing work and to withdraw from the contract. All associated costs and the loss of profits are to be borne by the client. A discount deduction will only be accepted within the framework of written agreements. If the customer defaults in payment of an invoice for a concluded contract for more than two weeks beyond the specified terms of payment, all claims of the contractor, unless expressly agreed otherwise, shall be due immediately, irrespective of the term. Under the aforementioned conditions, the contractor is also entitled to execute outstanding deliveries or services only against advance payment and to withdraw from this and other contracts after a reasonable period of grace and to demand compensation for non-performance.
9 Default interest, dunning and collection charges
In the case of non-culpable late payment, the contractor is entitled to charge default interest of 1.5% per month. Claims for compensation for higher interest rates will not be affected. The contracting party undertakes in the event of default to replace the dunning and collection charges incurred by the creditor, insofar as they are necessary for the purpose of legal prosecution, and to pay an amount of EUR 18.00 per reminder. In addition, any further damage, irrespective of the fault, is to be compensated for the delay in payment.
10 Retention of title
All delivered products, works and services remain the property of the Contractor until the full and final fulfillment of all claims. This is regardless of the legal grounds, including future or conditional claims and those arising from simultaneous or later concluded contracts. The unrestricted retention of title until full payment (including interest and costs) is especially valid for processing, sale, conversion and in particular also for connection with other parts as expressly agreed. The assertion of the retention of title is only a withdrawal from the contract, if it is expressly declared.
When goods are delivered, the risk passes to the client upon transfer to the carrier, regardless of whether the contractor himself carries out the transport or a third party. An agreed assumption of transport costs in individual cases has no influence on the transfer of risk. A takeover with reservation is generally excluded. If the type or quantity of the delivered goods deviates from the delivery note, acceptance of the delivery must be refused. Complaints regarding transport damages are to be brought forward by the transferee when the goods are taken over by the respective transport operator. Subsequent complaints are without exception acknowledged by the contractor. If the client refuses to accept the delivery items after expiry of a period of grace set for him or declares that he does not wish to accept the goods, the contractor may withdraw from the contract and claim damages for non-performance. It is agreed to claim damages either as a lump sum of 25% of the agreed purchase price or the replacement of the actual damage incurred by the client.
12 Delivery dates
Deadlines and delivery times are not binding and are given to the best estimate, but a specific fixed date is expressly excluded. The specification of certain dates is subject to the correct and timely delivery by suppliers and manufacturers. Part deliveries and advance deliveries are permitted. Delivery and service delays due to force majeure and due to other unforeseeable events that make delivery significantly more difficult or impossible, entitle the contractor to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time or from the contract, if still not satisfied, to withdraw in whole or in part. The client is not entitled to rescind nor to compensation for exceeding the promised dates.
The warranty period is 24 months and begins with the transfer of risk, unless otherwise agreed in writing. Defects must be reported in writing within a maximum of 8 days after the delivery date with a detailed description of the fault in case of any other disclaimer. Hidden defects must be reported in writing within 8 days of their discovery. Complaints are only valid if the defect is obvious and / or reproducible. If a complaint is not made or not collected in time, the delivery / service acceptance is considered approved. The assertion of warranty or damage claims as well as the right to error claims due to defects are excluded in these cases. If defects only occurred in one part of the delivery / service, the client can only object to this and not the entire delivery / service as defective. The contractor accepts no responsibility for errors, malfunctions or damage resulting from improper operation, abnormal operating conditions, atmospheric or static discharge or natural wear and tear, as well as repair attempts that have not been approved in writing or transport damage. The contractor assumes no responsibility for the fact that the delivery / service meets all functional requirements of the client, unless this was expressly made part of the contract. Remedies do not extend the warranty and / or warranty. The presumption rule of §924 ABGB is excluded. The existence of the defect at the time of delivery must be proven by the client. In the case of third-party deliveries, the contractor is entitled to assign the warranty claims existing against the upstream supplier to the customer with a debt-discharging effect. In the case of a guarantee or warranty claim, the contractor is liable for all defects, whereby the liability is limited to the costs of repair or replacement. Any travel time, labor or transport costs are at the expense of the client. Program and data backup must be carried out by the client at his expense, unless expressly agreed by contract. There is a fundamental duty of the intended recourse according to §933b ABGB. It is agreed to reverse the burden of proof according to §1298 ABGB. About o.a. In addition, the contractor shall not be liable for damages in the property area of the buyer nor for consequential damages of any kind unless deliberate or grossly negligent action exists and this is proven to the contractor by the injured party. For the sale to consumers within the meaning of the Consumer Protection Act, the statutory warranty conditions apply.
14 Limitation of liability, product liability
It is agreed that claims for damages for impossibility of performance, positive breach of contract, culpa in contrahendo and tort against the contractor are excluded unless intentional or grossly negligent action by the contractor is proven by the injured party. The replacement of consequential damages and financial losses, unrealized savings, interest losses and damages from claims of third parties against the contractor is in any case, as far as permitted by law, excluded. In any case, claims for compensation become statute-barred six months after performance of the service or delivery. Any recourse claims, which contract partners or third parties from the title “product liability” in the sense of the PHG against the contractor address, are excluded, unless the person entitled to recourse proves that the error was caused by the contractor and at least caused gross negligence.
15 Set-off, assignment ban
A set-off against claims of the contractor with counterclaims, of whatever kind, is excluded. Claims against the contractor may not be assigned unless expressly agreed in writing.
16 Industrial property rights and copyrights of third parties
The contractor assumes no liability for the fact that the contract products do not infringe any industrial property rights or copyrights of third parties. The client must immediately inform the contractor of all claims against him for this reason. Insofar as the delivered products have been manufactured according to drafts or instructions of the client, the client declares to indemnify the contractor against all claims asserted by third parties due to infringement of industrial property rights and / or copyrights. The contracting party must ensure compliance with copyrights, license rights, legal provisions or other agreements. The contracting party is liable for all resulting damage in full and has the contractor complete
If the delivered products are subject to Austrian and / or foreign export control regulations, the client is responsible for compliance with these export control regulations and their legally binding transfer to his customers and is obliged to indemnify and hold the contractor harmless.
The contracting party grants its express consent to ascertain and process the data relating to the business relationship that concern the client in the sense of the Data Protection Act.
All agreements, subsequent changes, additions, ancillary agreements, etc. require the written confirmation by the contractor to be valid.
20 Choice of law
Unless otherwise agreed, the statutory provisions of Austrian law apply, even if the order is carried out abroad. The applicability of the UN Sales Convention is excluded. The contract language is German or English.
21 GTC legal validity
By placing an order or agreeing on a contract, the client respects the terms and conditions of the contractor and its recognition as the sole legal basis in relation to the commercial, artistic and scientific achievements of the contractor. If these provisions are disregarded, the contractor reserves the right to legal action.
The place of fulfillment and jurisdiction is Vienna, Austria. The contractor waives challenge by mistake. For sale to consumers within the meaning of the Consumer Protection Act, the above provisions only apply to the extent that the Consumer Protection Act does not mandate other provisions. Failure to comply with essential parts of the contract entitles the contracting parties to premature dissolution of the contract without notice. In the event of the ineffectiveness of one or more provisions of this contract or the existence of a regulatory gap, the contracting parties shall take a legally effective substitute provision as close as possible to the ineffective or incomplete provision. The validity of the remaining provisions remains unaffected.