General Terms and Conditions of Sale
(GTC) of Mechatronics for Entrepreneurial Business
1.1 These terms and conditions apply between us (KECKEX GmbH, Austrasse 30, 6832 Sulz, Austria) and natural and legal persons (in short, the customer) for the present company-related legal transaction as well as for all future transactions, even if no express reference is made to them in individual cases, in particular for future supplementary or follow-up orders.
1.2 In each case, the version of our General Terms and Conditions current at the time of conclusion of the contract, which can be called up on our homepage (www.www.keckex.com), applies and was also transmitted to the customer.
1.3 We contract exclusively on the basis of our general terms and conditions.
1.4 The customer’s terms and conditions or amendments or supplements to our GTC require our express written consent in order to be valid.
1.5 The customer’s terms and conditions of business shall not be recognised even if we do not expressly object to them after receipt by us.
- Offers, conclusion of contract
2.1 Our offers are non-binding.
2.2 Promises, assurances and guarantees on our part or agreements deviating from these General Terms and Conditions in connection with the conclusion of the contract shall only become binding upon our written confirmation.
2.3 In catalogues, price lists, brochures, advertisements on trade fair stands, circulars, advertising mailings or other media (information material), information about our products and services that is not attributable to us must be presented to us by the customer – insofar as the customer bases its decision to place an order on this information. In this case we can comment on their correctness. If the customer violates this obligation, such information shall not be binding unless it has been expressly declared in writing to be part of the contract.
2.4 Cost estimates are provided without guarantee and are subject to a fee.
3.1 Price quotations are in principle not to be understood as a lump sum price.
3.2 For services ordered by the customer which are not covered by the original order, the customer shall be entitled to appropriate remuneration in the absence of an agreement on remuneration for work.
3.3 Prices are quoted 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. We are only obliged to take back packaging if this has been expressly agreed.
3.4 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.
3.5 We are entitled of our own accord, as well as obligated at the request of the customer, to adjust the contractually agreed fees if changes in the amount of at least 1% occur with regard to (a) the wage costs by law, ordinance, collective agreement, company agreements or (b) other cost factors necessary for the performance of services such as procurement costs of the materials used due to recommendations of the Joint Commissions or changes in the national or world market prices for raw materials, 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 actual performance, provided that we are not in default.
3.6 The remuneration for continuing obligations is agreed as value-assured according to the CPI 2010 and the remuneration is thereby adjusted. The month in which the contract was concluded is taken as the starting point
3.7 Costs for travel, daily and overnight allowances are charged separately. Travel time shall be considered as working time.
- Provided goods
4.1 If equipment or other materials are provided by the customer, we are entitled to charge the customer 2% of the value of the equipment or material provided as a manipulation surcharge.
4.2 Such equipment and other materials provided by the customer are not subject to warranty. The customer shall be responsible for the quality and operational readiness of the equipment provided.
5.1 Half of the fee is due upon conclusion of the contract, the rest after completion of the service.
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 for us.
5.4 If the customer is in default of payment within the scope of other contractual relationships existing with us, we shall be entitled to suspend performance of our obligations under this contract until performance by the customer.
5.5 We shall then also be entitled to call due all claims for services already rendered from the current business relationship with the customer.
5.6 If the payment deadline is exceeded, even if only with regard to a single partial service, any benefits granted (discounts, reductions, etc.) shall be forfeited and added to the invoice.
5.7 In the event of default in payment, the customer undertakes to reimburse us for the costs necessary and appropriate for collection (reminder costs, collection fees, lawyers’ fees, etc.).
5.8 Pursuant to § 456 of the Austrian Commercial Code (UGB), we are entitled to charge 9.2% points above the base interest rate in the event of a default in payment for which we are responsible.
5.9 We reserve the right to assert further damage caused by delay.
5.10 The customer shall only be entitled to set-off insofar as counterclaims have been judicially determined or acknowledged by us.
5.11 In the event of a delay in payment for which the customer is responsible, the customer undertakes to pay reminder charges of € 40 per reminder, insofar as this is in reasonable proportion to the claim pursued.
- 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.
- Cooperation obligations of the customer
7.1 Our obligation to provide the service shall commence at the earliest as soon as all technical details have been clarified, the customer has created the technical and legal prerequisites (which we will be pleased to provide on request), we have received the agreed advance payments or securities, and the customer has fulfilled his contractual obligations to provide advance services and to cooperate, in particular also those specified in the following subsections.
7.2 In the case of assembly work to be carried out by us, the customer is obliged to ensure that work can be started as soon as possible after the arrival of our assembly personnel.
7.3 The customer has to arrange the necessary authorizations of third parties as well as notifications and authorizations by authorities at his own expense. These can be requested from us.
7.4 The energy and water required for the performance of the service, including trial operation, shall be provided by the customer at the customer’s expense.
7.5 For the period of performance, the customer shall provide us free of charge with lockable rooms which are not accessible to third parties for the stay of the workers as well as for the storage of tools and materials.
7.6 The customer is liable for ensuring that the necessary structural, technical and legal requirements for the work to be produced or the object of purchase are met, which were described in the contract or in information provided to the customer prior to conclusion of the contract or which the customer should have known on the basis of relevant specialist knowledge or experience.
7.7 The customer shall also be liable for ensuring that the technical equipment, such as supply lines, cabling, networks and the like, are in a technically flawless and operational condition and are compatible with the works or objects of purchase to be produced by us.
7.8 We are entitled, but not obliged, to inspect these systems for a separate fee.
7.9 In particular, the customer shall provide the necessary information on the location of concealed electricity, gas and water lines or similar installations, escape routes, other obstacles of a structural nature, possible sources of danger as well as the necessary static information without being asked to do so before the start of the installation work.
7.10 Order-related details of the necessary information can be requested from us.
7.11 The customer shall bear sole responsibility for the design and functionality of parts provided. There is no obligation to inspect any documents, information or instructions provided by the customer – beyond the creation of a technical construction dossier and the certification of compliance with the Machinery Directive and any other applicable directives – with regard to the delivery item, and any liability on our part in this regard is excluded. The obligation to issue the certificate can be contractually transferred to the customer who places the delivery item on the market.
7.12 The customer is not entitled to assign claims and rights arising from the contractual relationship without our written consent.
8.1 We are only 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 which are reasonable and objectively justified for the customer shall be deemed to have been approved in advance. However, the warranty expires after the use of accessories or modifications not produced or recommended by KECKEX GmbH.
8.3 If, after the order has been placed, the order is amended or supplemented for whatever reason, 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 within a shorter period of time, 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 relation to the necessary additional expenditure.
8.5 Partial deliveries and services that are objectively justified (e.g. plant size, construction progress, etc.) are permissible and can be invoiced separately.
8.6 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.
- Delivery and performance deadlines
9.1 Delivery/performance deadlines and dates are only binding for us if they have been specified in writing. Any deviation from this formal requirement must also be in writing.
9.2 Deadlines and dates shall be postponed in the event of force majeure, strike, unforeseeable delays by our suppliers for which we are not responsible or other comparable events beyond our control for the period during which the event in question lasts. 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.
9.3 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 duty to cooperate pursuant to Section 7, performance deadlines shall be extended accordingly and completion dates shall be postponed accordingly.
9.4 We are entitled to charge 5 % of the invoice amount for each month of delay in performance that has begun for the storage of materials and equipment and the like in our company that is necessary as a result, whereby the customer’s obligation to pay and his obligation to take delivery shall remain unaffected by this.
9.5 In the event of withdrawal from the contract due to default, the customer must set a period of grace by means of a registered letter and at the same time threaten to withdraw from the contract.
- Risk transfer
10.1 The risk shall pass to the entrepreneurial 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.
10.2 The entrepreneurial customer shall take out appropriate insurance against this risk. We undertake to take out transport insurance at the customer’s written request and at the customer’s expense. The customer approves any customary mode of shipment.
- Default of acceptance
11.1 If the customer is in default of acceptance for more than 3 weeks (refusal of acceptance, default in advance performance or otherwise, no call-off within a reasonable period of time in the case of an order on call-off) and if the customer, despite being granted a reasonable period of grace, has failed to remedy the circumstances attributable to him 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 if the contract remains in force, provided that in the event of the continuation of the performance of the service we subsequently procure such equipment and materials within a period of time which is reasonable under the respective circumstances.
11.2 In the event of default of acceptance on the part of the customer, we shall also be entitled to store the goods on our premises if we insist on performance of the contract, for which we shall be entitled to a storage fee in accordance with clause 9.4.
11.3 In the event of a justified withdrawal from the contract, we shall be entitled to demand from the customer a lump-sum compensation for damages in the amount of 15 % of the gross order value without providing evidence of the actual damage.
11.4 The assertion of a higher damage is permissible.
- Retention of title
12.1 The goods delivered, assembled or otherwise handed over by us shall remain our property until payment has been made in full.
12.2 A resale is only permissible if we have been informed of this in good time beforehand, stating the name and exact address of the purchaser, and we consent to the sale. In the event of our consent, the purchase price claim shall already be assigned to us.
12.3 Until full payment of the remuneration or purchase price, the customer must note this assignment in his books and on his invoices and inform his respective debtors of this. Upon request, the customer shall provide us with all documents and information necessary for the assertion of the assigned claims.
12.4 If the customer is in default of payment, we shall be entitled to demand the return of the goods subject to retention of title after setting a reasonable period of grace.
12.5 The customer must notify us immediately prior to the opening of bankruptcy proceedings against his assets or the seizure of our goods subject to retention of title.
12.6 The customer declares his express consent that we may enter the location of the reserved goods in order to assert our reservation of title.
12.7 Necessary and reasonable costs for the appropriate prosecution shall be borne by the customer.
12.8 The assertion of the reservation of title shall only constitute a withdrawal from the contract if this is expressly declared.
12.9 We shall be entitled to dispose of the returned goods subject to retention of title on a discretionary basis and in the best possible manner.
12.10 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 the rights of third parties. In the event of seizure or other claims, the customer is obliged to point out our right of ownership and to inform us immediately.
- Third-party property rights
13.1 For delivery items which we manufacture according to customer documents (design data, drawings, models or other specifications, etc.), the customer exclusively assumes the guarantee that the manufacture of these delivery items does not violate the property rights of third parties.
13.2 If industrial property rights of third parties are nevertheless asserted, we shall be entitled to discontinue the manufacture of the delivery items at the risk of the customer until the rights of third parties have been clarified, unless the unjustified nature of the claims is evident.
13.3 The customer shall indemnify and hold us harmless in this respect.
13.4 We are entitled to demand appropriate advance payments from entrepreneurial customers for any legal costs.
13.5 Likewise, we can claim compensation from the customer for necessary and useful costs incurred by us.
13.6 We are entitled to demand reasonable advance payments for any legal costs.
- Our intellectual property
14.1 Delivery items and related execution documents, plans, sketches, cost estimates and other documents as well as software provided by us or created by our contribution shall remain our intellectual property.
14.2 Their use, in particular their passing on, duplication, publication and making available including also only excerpts copying, as well as their imitation, treatment or utilization requires our express agreement.
14.3 Furthermore, the customer undertakes to maintain secrecy with regard to third parties in respect of any knowledge acquired by him as a result of the business relationship.
15.1 The warranty period for our services is one year from handover.
15.2 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 service into his power of disposal or has refused acceptance without giving reasons. In the absence of a justified refusal of acceptance, the service shall be deemed to have been taken over by the customer on the day on which the customer is notified of completion.
15.3 If a joint handover is planned and the customer fails to attend the handover date notified to him, the handover shall be deemed to have taken place on that date.
15.4 Remedies of a defect alleged by the customer shall not constitute an acknowledgement of a defect.
15.5 The customer must always prove that the defect was already present at the time of handover.
15.6 In order to remedy defects, the customer must make the system or equipment accessible to us without culpable delay and grant us the opportunity to have it inspected by us or by experts appointed by us.
15.7 Notifications of defects and complaints of any kind are to be made in writing without delay (after 5 working days at the latest) at the registered office of our company, describing the defect as precisely as possible and stating the possible causes, otherwise the warranty claims will be forfeited. The goods or works complained about are to be handed over by the customer if this is feasible.
15.8 If the customer’s allegations of defects are unjustified, the customer shall be obliged to reimburse us for any expenses incurred in ascertaining that the goods are free of defects or in rectifying the defect.
15.9 Any use or processing of the defective delivery item that threatens further damage or makes it difficult or impossible to remedy the cause shall be discontinued by the customer immediately, unless this is unreasonable.
15.10 We shall be entitled to carry out or have carried out any inspection we deem necessary, even if this renders the goods or workpieces unusable. In the event that this examination shows that we are not responsible for any defects, the customer shall bear the costs of this examination for a reasonable fee.
15.11 Transport and travel costs incurred in connection with the rectification of defects shall be borne by the customer. At our request, the customer shall provide the necessary labour, energy and premises free of charge and shall cooperate in accordance with point 7.
15.12 The customer shall grant us at least two attempts to remedy the defect.
15.13 We may avert a claim for conversion by improvement or reasonable price reduction, provided that the defect is not substantial and cannot be remedied.
15.14 If the objects of performance are manufactured on the basis of information, drawings, plans, models or other specifications of the customer, we shall only provide a warranty for the execution in accordance with the conditions.
15.15 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 his obligations to cooperate in accordance with point 7.
15.16 Likewise, it shall not constitute a defect if the customer’s technical equipment, such as supply lines, cabling, networks, etc., is not in a technically flawless and operational condition or is not compatible with the delivered items.
16.1 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 technical peculiarities.
16.2 The liability is limited to the maximum liability amount of any liability insurance taken out by us.
16.3 This limitation shall also apply with regard to damage to an item which we have taken over for processing.
16.4 Claims for damages must be asserted in court within two years, otherwise they will be forfeited.
16.5 The limitations or exclusions of liability also include claims against our employees, representatives and vicarious agents due to damage caused by them to the customer without reference to a contract on their part with the customer.
16.6 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 authorised by us, or natural wear and tear, insofar as this event was causal for the damage. Likewise, the exclusion of liability exists for the omission of necessary maintenance.
16.7 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 favour (e.g. liability insurance, hull insurance, transport, fire, business interruption and others), the customer undertakes to claim the insurance benefit and our liability towards the customer is limited to the disadvantages incurred by the customer as a result of claiming this insurance (e.g. higher insurance premium).
16.8 Those product characteristics are owed which can be expected by the customer with regard to the approval regulations, operating instructions and other product-related instructions and notes (in particular also inspection and maintenance) from us, third party manufacturers or importers, taking into account their knowledge and experience. The customer as reseller shall take out sufficient insurance for product liability claims and shall indemnify and hold us harmless with regard to recourse claims.
- Severability clause
17.1 Should individual parts of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining parts.
17.2 The parties undertake at this point in time to agree on a replacement provision – based on the horizon of honest contracting parties – which comes as close as possible to the economic result of the invalid condition, taking into account the customary nature of the industry.
18.1 Austrian law shall apply.
18.2 The UN Convention on Contracts for the International Sale of Goods is excluded.
18.3 Place of performance is the registered office of the company (Austrasse 30, 6832 Sulz – Feldkirch).
18.4 The place of jurisdiction for all disputes arising from the contractual relationship or future contracts between us and the customer is the court with local jurisdiction for our registered office (BG Feldkirch).
18.5 The customer must inform us immediately in writing of any changes to his name, company, address, legal form or other relevant information.
These GTC have been prepared in accordance with the currently applicable legal situation. However, it is pointed out that all information is provided without guarantee despite the most careful processing and that liability of the author, the publisher or the Austrian Federal Economic Chamber is excluded. Independent changes are possible, but are made exclusively at the user’s own risk. Linguistic formulations in the masculine form apply equally to both genders.
Rules of conduct for users of GTC:
- Please note that the general terms and conditions for mechatronic engineers only apply to business transactions with companies.
- The model GTC of the Federal Guild represent a basic standard. When reading them carefully, check whether these model GTC also cover your requirements and problem cases in practice. More far-reaching regulations are possible if you only contract with companies. The model GTCs cannot replace individual legal advice.
- Complete the items: 1.1, 1.2, 3.5, 4.1, 5.11, 9.4, 11.1, 11.3, 15.7, 18.3.
- Insist on the use of your general terms and conditions vis-à-vis your customers (argument: you provide the characteristic main service).
- General terms and conditions must be agreed (signature recommended) so that they become part of the contract. A note must be made on the front of the offer. Suggested wording: “Our enclosed GTC apply exclusively”.
- For the effective agreement of the GTC, these must be presented to the contractual partner; at the latest, however, at the time of the conclusion of the contract. The mere availability on the homepage is no longer sufficient (neither for consumers nor for entrepreneurs). Therefore, send your GTC with your offer to the customer.
- As a general rule, deviating individual agreements take precedence over the provisions in the GTC. If you individually (e.g. in other correspondence) agree to the terms and conditions of the customer, the “defence clause” in point 1.5 does not protect you.
- If the customer wanted to conclude the contract on the basis of your general terms and conditions, your general terms and conditions (point 1) do not automatically apply solely through acceptance of your goods/services by the customer.
- Document all agreements (including subsequent additional and supplementary orders or changes) in writing. Detailed descriptions of services avoid later disputes about the content and scope of the order.
- If you execute the order on the basis of an order without express acceptance or correspondence, this constitutes an implied acceptance of an order by de facto execution. However, it should be borne in mind that the acceptance corresponds exactly to the order and the conditions provided for therein. Changes, such as the application of the general terms and conditions, do not take place without a corresponding agreement. We therefore recommend handing these over to the customer in any case before the start of execution and agreeing their validity with the customer.
- Conceptually, a distinction must be made between an offer and a quotation: Offer is the contractual declaration (offer – acceptance) that you are willing to perform the work under the stated conditions. If an offer is declared without obligation, there is a right of revocation – probably even after receipt of the acceptance of the other – but you are obliged to respond immediately. In the absence of an immediate reply, the contract shall be concluded in accordance with the accepted offer. The cost estimate is the professional calculation of the probable costs of the work (goes beyond mere offer character). In most cases, it is also connected with the willingness to execute the work in this way (thus at the same time an offer), but it is not necessary. As a result, unforeseen sizes or costliness of the estimated work cannot be taken into account in a way that increases the remuneration.
- Users of general terms and conditions wish to have certain provisions which, however, cannot be effectively agreed by mere inclusion in the general terms and conditions. In the following, we offer suggestions for solutions.
- In the individual contract, you should finally state which sketches, plans, etc. form the basis of the contract as binding.
- Compensation for (additional) services: The services to be provided must be described as precisely as possible in the contract/order confirmation (what services, what scope, what structural conditions, what other requirements, etc.). Necessary additional services can thus be clearly defined and additionally charged (appropriate fee) (point 3.2).
- If, after conclusion of the contract, the customer requests accelerated execution or services not included in the original order, this constitutes a modified or additional service. In the absence of a fee agreement, you may charge an appropriate fee for the additional services. To clarify that such services are not included in the original scope of the order, you should point out the associated increased costs (e.g. fax after on-site meeting; supplementary to point 3.2).
- The structural, technical and legal requirements must be precisely described in the offer, at the latest when the contract is concluded (obligation to provide information). Otherwise, a transfer of the obligation to create the prerequisites – of which the customer is unaware – is not effective.
- Concealed cables etc. (Point 7.9): Tell the customer what information you require.
- Duty to warn: Notwithstanding these General Terms and Conditions, the customer shall be warned if substances (equipment, materials), infrastructure or instructions provided by the customer are obviously unsuitable for the production of the work. This also applies to knowledgeable customers. A duty to warn cannot be adequately fulfilled by general information in the General Terms and Conditions (point 4, materials provided, etc.).
- The permissibility of certain partial deliveries and services should be specified in individual contracts. We have included this in principle in the GTC (point 8.5), but have restricted it to objectively justified partial deliveries and services for reasons of permissibility. Such objective justification is not required in the individual contract if both parties agree on it.
- Retention of title with resale option (clause 14.2): This clause is an assignment by way of security (assignment of the claim as security). To be effective, the purchaser of the item must be notified or the assignment must be entered in the customer’s books.
- The restriction that business customers must be granted at least two attempts to remedy defects (clause 15.12.) can only apply insofar as this is reasonable for the customer (in time for the event).
- If you are commissioned to remedy a defect in a work and the customer assumes that this is owed by you within the framework of the warranty (point 15), you shall point out to the customer that the service can be provided but that this is not within the framework of the warranty if it turns out that there is no defect.
- If it is advantageous for you in the specific case, you can agree on the subsidiary validity of the relevant ÖNORM standards vis-à-vis business customers. However, these partly also contain stricter provisions for you.
- The GTC may be supplemented or amended as required by special provisions in individual contracts. Should certain cases generally be regulated differently or additionally, these can be included in the GTC.