AGB
Schmidberger Elektroinstallations GesmbH
Status May 2023
1. validity
1.1 These Terms and Conditions shall apply between Schmidberger Elektroinstallationen Ges.m.b.H. and natural persons and legal entities (in short: Customer) for the present legal transaction as well as vis-à-vis business customers also for all future transactions, even if no express reference is made thereto in the individual case, in particular for future supplementary or follow-up orders.
1.2 The version of our General Terms and Conditions valid at the time of conclusion of the contract, which can be found on our homepage(www.schmidberger.at), shall apply to business customers.
1.3 Business transactions shall be made exclusively on the basis of our General Terms and Conditions.
1.4 Any terms and conditions of business of the customer or any amendments or supplements to our GTC shall require our express written consent in order to be valid.
1.5 The customer's terms and conditions shall not be recognized even if we do not expressly object to them after receipt by us.
1.6 In the case of delivery of software or provision of software services, the software terms and conditions published by the Austrian Electrical and Electronic Manufacturers' Association (FEEI) shall also apply.
2. offer / conclusion of contract
2.1 Offers shall only be issued in writing.
2.2 Our offers are non-binding. Exceptions to this are offers or cost estimates which contain an express period of validity or acceptance.
2.3 Orders or purchase orders addressed to us, insofar as they deviate from our previously submitted offer, require an order confirmation for the conclusion of a contract.
2.4 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 upon our written confirmation.
2.5 Information about our products and services given in catalogs, price lists, brochures, advertisements on trade fair stands, circulars, advertising mailings or other media (information material) that is not attributable to us shall be presented to us by the customer - if 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 we have expressly declared it in writing to be part of the contract.
2.6 Cost estimates are provided without guarantee and are subject to payment.
3. prices
3.1 Prices are quoted exclusive of the applicable statutory value added tax and ex warehouse. Packaging, transport. Loading and shipping costs, dismantling as well as customs duties and insurance shall be borne by the entrepreneur customer. These costs will only be charged to consumers as customers if this has been negotiated in an individual contract. We are only obliged to take back packaging if this has been expressly agreed.
3.2 Price quotations are generally not to be understood as a lump sum price. In the case of contracts with unit prices, invoicing shall be based on measurement. In the case of contracts with a lump sum price, the agreed lump sum price shall be charged.
3.3 In case of an order deviating from the total offer, we reserve the right to change the price accordingly.
3.4 For services ordered by the customer, which are not covered by the original order, the customer is entitled to an appropriate fee.
3.5 We are entitled of our own accord, as well as obligated at the request of the customer, to increase the contractually agreed fees if increases in the amount of at least 2% have occurred with regard to (a) the wage costs by law, regulation, collective agreement, company agreements or (b) other cost factors necessary for the performance of services such as material costs due to recommendations of the Joint Commissions or changes in the national or world market prices for raw materials, changes in relevant exchange rates, etc. 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 the actual performance of the service, provided that we are not in default.
3.6 The remuneration for continuing obligations shall be agreed as value-assured in accordance with the CPI 2010 and the remuneration shall be increased as a result. The month in which the contract was concluded shall be taken as the starting point
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3.7 Lines laid in bends are measured in the outer bend. Fittings and fixtures are measured in the outer pipe dimension, but are charged separately. Interruptions up to a maximum of 1 meter are not taken into account.
3.8 If the invoicing is based on measurements and a joint determination of the measurements has been agreed upon, the customer shall prove that the determined measurements were not determined correctly in case of absence despite timely invitation.
3.9 Necessary approvals from third parties, in particular from the authorities or energy supply companies, shall be provided by the customer; we are authorized to arrange for mandatory notifications to authorities at the customer's expense.
3.10. 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.
4. goods provided (provisions)
4.1 If goods, 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 goods, equipment or material provided.
4.2 No warranty or liability shall be assumed for materials provided by the customer. The customer is responsible for the quality and operational readiness of the supplies.
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 upon completion of performance.
5.2 The entitlement to a discount requires an express written agreement.
5.3 Payment dedications made by the Customer on transfer vouchers are not binding.
5.4 In the event of a delay in payment for which we are responsible, we shall be entitled to charge 9.2% above the base interest rate to business customers; we shall charge consumers an interest rate of 4%.
5.5 We reserve the right to claim further damages for delay, however, vis-à-vis consumers as customers only if this is negotiated in detail.
5.6 If the entrepreneur customer is in default of payment within the scope of other contractual relationships existing with us, we shall be entitled to suspend the fulfillment 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.
5.8 The customer is not entitled to withhold or offset payments due to warranty claims or other counterclaims.
5.9 The customer shall only be entitled to a right of set-off insofar as counterclaims have been determined by a court or recognized by us. Consumers as customers shall also be entitled to a right of set-off insofar as counterclaims are legally related to the customer's payment obligation.
5.10. In case of exceeding the payment deadline, granted allowances (discounts, deductions, etc.) shall be forfeited and added to the invoice amount.
5.11. In the event of default in payment, the customer undertakes to reimburse us for the costs necessary and appropriate for collection (reminder costs, collection expenses, lawyers' fees, etc.). In particular, in the event of a delay in payment for which the customer is responsible, the customer undertakes to pay reminder fees per reminder in the amount of € 30, insofar as this is in reasonable proportion to the claim pursued.
5.12. If delays occur in the performance of services in accordance with clause 9, we shall be entitled to issue partial invoices for the services provided to date and to make them due for payment.
6. credit check
6.1 The customer declares his express consent that his data may be transmitted to the state-preferred creditor protection associations Alpenländischer Kreditorenverband (AKV), Österreichischer Verband Creditreform (ÖVC), Insolvenzschutzverband für Arbeitnehmer oder Arbeitnehmerinnen (ISA) and Kreditschutzverband von 1870(KSV) exclusively for the purpose of creditor protection.
7. cooperation obligations of the customer
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 and the preliminary services of the other contractors working on the construction site have been rendered.
7.2 In particular, the Customer shall provide, without being requested to do so, the necessary information on the location of concealed power, 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 structural data and any projected changes in this respect before commencing performance.
7.3 Order-related details on the necessary information can be requested from us.
7.4 If the customer does not comply with this obligation to cooperate, our performance shall not be defective - exclusively with regard to the performance not fully given as a result of incorrect customer information.
7.5 The customer shall arrange for the necessary authorizations of third parties as well as notifications and authorizations by authorities (e.g. registration of power supply) at his own expense. We refer to these within the framework of the conclusion of the contract, unless the customer has waived this or the entrepreneur customer had to have such knowledge due to training or experience.
7.6 The energy and water quantities required for the performance of the service, including the trial operation, shall be provided by the Customer at its expense.
7.7 The customer shall also be liable 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 works or objects of purchase to be produced by us.
7.8 We are entitled, but not obliged, to inspect these installations for a separate fee.
7.9 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 execution
8.1 We shall only be obliged to take into account subsequent requests for changes and extensions by the customer if they are necessary for technical reasons in order to achieve the purpose of the contract.
8.2 Minor changes to our performance that are objectively justified and reasonable for the entrepreneur customer shall be deemed to have been approved in advance. This right shall only exist vis-à-vis consumers if it is negotiated on a case-by-case basis.
8.3 If, for whatever reason, the order is amended or supplemented after the order has been placed, the delivery/performance period shall be extended by a reasonable period of time.
8.4 If, after conclusion of the contract, the customer requests performance of the service within a shorter period than agreed, this shall constitute an amendment to the contract. As a result, overtime may become necessary and/or additional costs may be incurred due to the acceleration of material procurement, and the remuneration shall be increased appropriately in proportion to the necessary additional expenditure.
8.5 Partial deliveries and services that are objectively justified (e.g. size of plant, progress of construction, etc.) shall be permitted and may be invoiced separately.
9. performance deadlines and dates
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 (e.g. bad weather), deadlines and dates shall be postponed for the duration of the event in question. This does not affect the customer's right to withdraw from the contract in the event of delays that make it unreasonable to commit to the contract.
9.2 If the start of the performance or the performance is delayed or interrupted due to circumstances attributable to the Customer, in particular due to a breach of the cooperation obligations pursuant to Section 7 of these GTC, performance deadlines shall be extended accordingly and agreed completion dates shall be postponed accordingly. The additional costs incurred due to the delays shall be borne by the customer.
9.3 We shall be entitled to charge 2% of the invoice amount for each commenced month of the delay in performance for the necessary storage of materials and equipment etc. in our company due to the delay, whereby the customer's obligation to pay and his obligation to accept shall remain unaffected.
9.4 Delivery and completion dates shall only be binding if their observance has been agreed in writing; however, they shall not be deemed fixed dates.
9.5 In the event of a delay in the performance of the contract by us, the customer shall be entitled to withdraw from the contract after setting a reasonable grace period. The grace period must be set in writing (by business customers by registered letter) with simultaneous threat of withdrawal.
10. reference to limitation of the scope of services
10.1 In the course of assembly and repair work, damage may occur (a) to existing (pipe) lines, equipment as a result of unrecognizable (in particular structural) conditions or material defects of the existing stock (b) during caulking work in bondless masonry. We shall only be responsible for such damage if we have culpably caused it.
10.2 In the case of makeshift repairs, there is only a very limited durability corresponding to the circumstances.
10.3 In the event of makeshift repair, the customer shall immediately arrange for professional repair.
11. risk assumption
11.1 The risk shall pass to the entrepreneur customer as soon as we hold the object of purchase, the material or the work ready for collection in the factory or warehouse, deliver it ourselves or hand it over to a carrier.
11.2 At the express request of the customer, we may take out transport insurance at the customer's expense.
11.3 In the event of shipment by us, the customer approves any customary method of shipment.
12. default of acceptance
12.1 If the customer is in default of acceptance for more than 4 weeks (refusal of acceptance, default in advance performance or otherwise) and if the customer, despite having been granted a reasonable grace period, has failed to remedy the circumstances for which it is responsible and which delay or prevent the performance of the service, we shall be entitled to otherwise dispose of the equipment and materials specified for the performance of the service while the contract remains in force, provided that, in the event that the performance of the service is continued, we procure such equipment and materials within a period of time which is reasonable under the circumstances.
12.2 If the customer is in default of acceptance, we shall also be entitled to store the goods at our premises if we insist on performance of the contract, for which we shall be entitled to a storage fee in the amount of 2% of the invoice amount for each commenced month of delay in performance.
12.3 This shall not affect our right to demand payment for services rendered and to withdraw from the contract after a reasonable period of grace.
12.4 In the event of a justified withdrawal from the contract, we shall be entitled to demand from the customer liquidated damages in the amount of 20% of the order value plus VAT without proof of the actual damage. The obligation to pay damages by an entrepreneur customer is independent of fault. The assertion of damages in excess of this is permissible.
13. retention of title
13.1 The goods delivered, assembled or otherwise handed over by us shall remain our property until payment has been made in full.
13.2 A resale shall only be permissible if we have been notified of such resale in good time in advance, stating the name and address of the purchaser, and if we consent to the sale.
13.3 In the event of our consent, the purchase price claim of the Entrepreneur Customer shall already now be deemed assigned to us.
13.4 If the customer is in default of payment, we shall be entitled to demand the return of the reserved goods after setting a reasonable grace period.
13.5 The customer shall notify us immediately of the opening of bankruptcy proceedings against its assets or of the seizure of our reserved goods.
13.6 We are entitled to enter the location of the goods subject to retention of title in order to assert our retention of title insofar as this is reasonable for the customer; this shall be done after reasonable advance notice.
13.7 Necessary and reasonable costs for the appropriate prosecution shall be borne by the customer.
13.8 The assertion of the reservation of title shall only constitute a withdrawal from the contract if this is expressly declared.
13.9 We shall be entitled to dispose of the returned goods subject to retention of title freely and at the best possible price vis-à-vis business customers.
13.10. Until full payment of all our claims, the object of performance/purchase may not be pledged, transferred by way of security or otherwise encumbered with rights of third parties. In the event of a pledge or other claim, the customer shall be obliged to point out our right of ownership and to notify us immediately.
14. property rights of third parties
14.1 If the customer contributes intellectual creations or documents and if third party property rights are asserted with regard to such creations, we shall be entitled to cease 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 it is obvious that the asserted claims are unjustified.
14.2 The customer shall indemnify and hold us harmless in this respect.
14.3 We may also demand compensation from the customer for necessary and useful costs incurred by us.
14.4 We shall be entitled to demand reasonable cost advances from Entrepreneur Customers for any litigation costs.
15. our intellectual property
15.1 Plans, sketches, cost estimates, specifications and other documents provided by us or created by our contribution shall remain our intellectual property.
15.2 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.
15.3 The customer further undertakes to maintain secrecy vis-à-vis third parties with regard to the knowledge he has obtained from the business relationship.
16. warranty
16.1 The statutory provisions on warranty shall apply.
16.2 There shall be no warranty in accordance with § 928 ABGB (Austrian Civil Code) for obvious defects which are already apparent at the time of handover, acceptance or commissioning of the contractual performance.
16.3 The warranty period for our services to business customers shall be 6 months from handover. This shall also apply to delivery and service items that are firmly connected to a building or land.
16.4 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 over the performance into its power of disposal or has refused to take over the performance without giving reasons.
16.5 If a joint handover is provided for and the Customer fails to attend the handover date notified to him, the handover shall be deemed to have taken place on that date for the purpose of calculating the warranty period.
16.6 Remedies of a defect claimed by the Customer shall not constitute an acknowledgement of the defect claimed by the Customer.
16.7 The Entrepreneur Customer shall grant us at least two attempts to remedy defects.
16.8 If the customer's allegations of defects are unjustified, the customer shall be obligated to reimburse us for any expenses incurred in determining that the goods are free of defects or in remedying the defects.
16.9 The entrepreneur customer shall always have the burden of proof that the defect was already present at the time of handover.
16.10. Defects in the delivery item which the entrepreneur customer has discovered or should have discovered by examination in the ordinary course of business after delivery must be reported to us in writing without delay, at the latest 7 days after handover. Hidden defects must also be reported within this period from the time of discovery.
16.11. Any use or processing of the defective object of performance that 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.
16.12. If a notice of defects is not made in due time, the goods shall be deemed approved.
16.13. The defective delivery or samples thereof shall be returned to us by the entrepreneur customer - if economically justifiable. Transport and travel costs incurred in connection with the rectification of defects shall be borne by the customer. The defective delivery or samples thereof shall - if economically justifiable - be returned to us by the entrepreneur customer.
16.14. The customer shall be obliged to enable us to determine the defect without delay.
16.15. 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. Furthermore, there is no warranty for defects caused by actions of third parties, atmospheric discharges, overvoltages and chemical influences. The warranty does not apply to the replacement of parts that are subject to natural wear and tear.
16.16. The circumstance that the work is not fully suitable for the agreed use shall not constitute a defect if this is based exclusively on deviating actual circumstances from the information available to us at the time of the performance of the service because the customer does not comply with its obligations to cooperate pursuant to item 7.
17. liability
17.1 Due to breach of contractual or pre-contractual obligations, in particular due to impossibility, delay, etc., we shall only be liable for financial losses in cases of intent or gross negligence due to the technical specifics. In the event of slight negligence, any compensation for damages shall be excluded.
17.2 Liability vis-à-vis business customers shall be limited to the maximum liability amount of any liability insurance taken out by us.
17.3 This limitation shall also apply with regard to damage to an item that we have taken over for processing.
17.4 Claims for damages by business customers must be asserted in court within 6 months, otherwise they shall be forfeited.
17.5 The exclusion of liability also includes claims against our employees, representatives and vicarious agents due to damage they cause to the customer - without reference to a contract on their part with the customer.
17.6 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 authorized by us, or natural wear and tear, insofar as this event was causal for the damage. Likewise, the exclusion of liability exists for omission of necessary maintenance, unless we have contractually assumed the duty of maintenance.
17.7 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 favor (e.g. liability insurance, hull, 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).
18. severability clause
18.1 Should individual parts of these GTC be invalid, this shall not affect the validity of the remaining parts.
18.2 We, as well as the entrepreneurial customer, undertake already now - based on the horizon of honest contracting parties - to jointly agree on a substitute provision which comes as close as possible to the economic result of the ineffective condition.
19. general
19.1 Austrian law shall apply.
19.2 The UN Convention on Contracts for the International Sale of Goods is excluded.
19.3 The place of performance shall be the registered office of the Company (3430 Tulln, Königstetterstrasse 167).
19.4 The exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be the competent court of the district in Vienna.
19.5 The contracting party agrees that its personal data, namely name/company, company register number, powers of representation, contact person, address, telephone number, fax number, e-mail address as well as bank details and VAT number are processed at the company Schmidberger Elektroinstallationen GmbH for the purpose of order processing, contract performance as well as support of the contracting party and that these are passed on to potential subcontractors, suppliers and service providers as well as affiliated companies for the purpose of order processing. This consent can be revoked at any time by sending an e-mail to office@schmidberger.at.