GENERAL TERMS AND CONDITIONS
of KWB - Kraft und Wärme aus Biomasse GmbH
1.
Area of applicability
1.1.
The supply of "contractual goods" as well as the
rendering of "services" by KWB Kraft und Wärme
aus Biomasse GmbH
("KWB") to contractual partners or third parties takes place based on
the "General Terms and Conditions" set forth in the present document.
"Contractual goods" refer to all physical items, connections,
technical units and combinations of physical items as well as software.
"Services" are services
rendered such as assembly and maintenance services.
1.2.
KWB enters contracts exclusively under its own General Terms and
Conditions. Conflicting regulations, particularly general terms and conditions
or purchase conditions of contractual partners are only applicable if KWB has
explicitly and in writing acknowledged these conflicting general terms and
conditions or purchase conditions. KWB is in this respect not obligated to
explicitly object to the general terms and conditions of contractual partners,
even if these general terms and conditions are set forth as valid as an
explicit condition for the conclusion of the business transaction. Any
amendment to these General Terms and Conditions must be made in writing. A lack
of response by KWB shall explicitly not be considered an agreement, e.g. with
respect to modification requests by the contractual partner.
1.3.
In the event of a direct conflict between the provisions of
these General Terms and Conditions with more detailed written agreements of KWB
(e.g. customer service provisions, maintenance agreements, order confirmations,
special usage terms for Comfort Online), the respective provisions of the more
detailed written agreement take priority. The validity of the other provisions
of these General Terms and Conditions remain unaffected thereby.
2.
Proposals/order confirmation/written form requirement
2.1.
Our proposals are non-binding. Documents such as diagrams,
sketches, drawings, cost schedules, etc. shall only become binding if agreed in
writing. Contract conclusions shall only take effect through a written order
confirmation from KWB or on delivery of the contractual goods and/or the
rendering of services. In the latter two cases, the invoice shall be taken to
be the order confirmation.
2.2.
Scope and content of the contractual relationship are determined
by KWB's written order confirmation or, if lacking, by the actual delivery and
service scope. Verbal modifications or supplementary agreements shall not be
binding for KWB.
3.
Official permits
The contractual partner is exclusively
responsible for obtaining all official permits such as import and export
licenses and foreign currency permits that are required for the delivery of
contractual goods and/or the rendering of services. The contractual partner
must provide the aforementioned permits in due time, otherwise the contractual
partner bears all negative consequences and KWB is entitled to withdraw from
the contract. In such an event, the contractual partner shall compensate KWB
for the damage resulting from such an omission, including lost profits,
regardless of KWB's exercise of its right to withdraw.
4.
Diagrams and documents/system software/installation rules
4.1.
All catalogues, brochures, diagrams, drawings, manuals and
control and adjustment programmes etc. are protected as intangible property and
always remain the intellectual property of KWB. Any use, reproduction,
distribution, publication, processing and/or other transfer to third parties
requires KWB's prior written consent.
4.2.
When operating the contractual goods, the installation,
operating and other technical regulations and instructions from KWB must be
strictly observed and adhered to. The contractual partner is obligated and must
provide proof that the customer has been informed about these rules and
instructions, and must obtain the customer's confirmation of receipt of the
aforementioned documents in cases where commissioning of the contractual goods
is not carried out by KWB. The contractual partner shall be responsible for any
negative consequences that result from non-compliance with such regulations.
4.3.
An acceptance test of contractual goods requires a separate
written agreement.
5.
Delivery and service period/transportation/insurance
5.1.
Deadlines for delivery of contractual goods and/or the rendering
of services are non-binding for KWB and shall not take effect until an
agreement has been reached with respect to all order details. Delays caused by
KWB shall not entitle the contractual partner to assert any claims,
irrespective of the legal reason.
5.2.
KWB is entitled to deliver parts of the contractual goods or to
render parts of services. Even if no separate agreement is concluded, KWB shall
be entitled to demand partial payments and deposits at any time and to retain
or delay deliveries or services if the contractual partner is in default - even
with just one of its obligations and/or duties or payments due.
5.3.
All transportation of contractual goods shall take place at the
expense and at the risk of the contractual partner. Freight costs will not be paid
in advance. Unless agreed to in writing, the shipping is carried out by a
shipping company/freight carrier selected by KWB, while the latter in this case
is not obligated to determine or select the most cost-effective shipping
method.
5.4.
The contractual goods shall be insured only if ordered
separately in writing by the contractual partner and only at the contractual
partner's expense.
5.5.
The transfer of risk shall takes place during the transfer of
the contractual goods to the shipping company/freight carrier. The contractual
partner expressly agrees that third parties hired by KWB, in particular KWB's
sales partners, may receive the contractual goods for the contractual partner.
6.
Force Majeure
Should KWB not be able to
carry out a delivery or provide a service due to force majeure, KWB shall
notify the contractual partner of such event as quickly as possible. In this
case, KWB shall be entitled to withdraw partially or fully from the contract
and shall not be obligated to pay damages to the contractual partner. In any
case, both contractual parties' obligations shall rest for the duration of the
force majeure event.
7.
Prices/costs
7.1.
All KWB prices are net ex works (excl. statutory fees and taxes)
including packaging costs, but without transportation costs, unless expressly
agreed in writing.
7.2.
In the absence of any deviating written agreement, KWB's
respective hourly rates apply for the provision of services such as
installation, maintenance and/or repair work as well as training.
7.3.
In the following cases, the contractual partner bears all costs:
a) Commissioning of contractual
goods;
b) Modifications of the delivery
and/or service scope regardless of the reason, which are caused by the
contractual partner and/or the contractual partner's customer, or for technical
reasons:
c) Contract
terminations/cancellations/annulments;
d) Delay of the service and/or
delivery for reasons, for which the contractual partner and/or the contractual
partner's customer are responsible, e.g., failure to meet obligations and/or
duties or at their wish;
e) Assertion of the retention of
title or enforcement of proprietary rights by KWB.
8.
Payments
8.1.
In the absence of a written agreement with respect of a date of
payment, all KWB claims shall be due immediately on receipt of invoice or
delivery of the contractual goods and/or rendering of services without trade
credit or any other deductions. KWB shall be entitled to request prepayment
before carrying out the delivery of contractual goods or rendering of services.
8.2.
In the event of default, KWB is entitled to first charge the
payments made by the contractual partner to the settlement of required
reasonable collection costs as far as they are required for the adequate
assertion of legal rights and default interests. Payments may also be used by
KWB to settle older open accounts without consideration to an opposing
allocation by the contractual partner. Conflicting notes, on the payment
statements, for example, shall be null and void.
8.3.
Should the contractual partner be in default with respect to a
contractual obligation and/or duty, e.g., payments and/or receipt of
contractual goods, the risk of an accidental destruction or deterioration of
the contractual goods pass over to the contractual partner and KWB at its
discretion may insist on the fulfilment of the contract and/or exercise one or
several of the following rights:
- Assertion of retention of
title and/or
- Delay in the fulfilment of
obligations until payment of delayed payments or other services, and/or
- Reasonable extension of the
delivery period by KWB, and/or
- Immediate payment of the
entire as of yet unpaid purchase price, and/or
- Charging of default interest
in the amount of 12% p.a., and/or
- Withdrawal from the contract
after a grace period of two weeks has expired.
These rights may also be
exercised analogously by KWB immediately upon the initiation of insolvency
proceedings with respect to the assets of the contractual partner or a
rejection of an initiation of such proceedings due to a lack of cost-covering
assets.
8.4.
Should KWB withdraw from the contract and/or assert its
retention of title, the contractual partner shall be obliged to immediately
return all already delivered and unpaid contractual goods at the contractual
partner's own expense and risk and to provide compensation for any incurred
impairment as well as compensate KWB for any other incurred expenses. The
contractual partner shall be obliged to pay KWB a reasonable usage fee for the
utilisation of the contractual goods until their actual return.
8.5.
In the event of a payment plan agreement, even a partial default
on an instalment shall automatically render the entire payment plan void.
9.
Retention of title
9.1
KWB retains the unrestricted title to the contractual goods
until full payment of the respective purchase price and of ancillary costs
incurred in connection with a potential default has been effected. KWB shall be
entitled but not obliged to indicate its ownership on the exterior of the
contractual goods. This indicator of title must not be removed by the
contractual partner.
9.2
The assertion of the retention of title does not require
withdrawal and shall in itself not be considered a withdrawal from the
contract. It shall not release the contractual partner from its contractual
obligations, particularly with respect to the payment of open invoices. As part
of the retention of title in favour of KWB, sale to a third party, processing,
pledging, mortgaging or any other disposal of the contractual goods before full
payment of the purchase price shall be deemed illegal. The contractual partner
shall immediately notify KWB of any change in the factual or legal status of
the contractual goods subject to title retention, e.g., of levies of execution
or a degradation of the contractual goods.
9.3
Until full payment of the respective purchase price, the
contractual partner shall be obligated to ensure the safety of the contractual
goods subject to title retention and to protect KWB's property rights. In
particular, the contractual partner shall be obliged to protect the contractual
goods subject to title retention against fire, theft and damage by third
parties at the contractual partner's own cost up to a reasonable amount and
shall be liable to KWB with respect to loss or damage of said contractual
goods. The contractual partner shall be obliged to keep the contractual goods
in good order for the duration of the title retention.
9.4
Should KWB assert its retention of title, the contractual
partner shall be obligated to immediately hand over the contractual goods that
are subject to the title retention. In the event of a default or insolvency of
the contractual partner, KWB shall be entitled to recover the contractual goods
that are subject to retention of title without the contractual partner being
entitled to any claims in this respect, e.g., with respect to trespassing, as
long as the recovery is not related to any physical damage on third party
property, or KWB shall be entitled to demand an immediate return at the
contractual partner's expense and risk.
9.5
If, despite the agreed retention of title, the contractual goods
are nevertheless sold to a third party, the contractual partner herewith
assigns by way of security to KWB all claims arising therefrom against said
third party up to the amount of any existing liability and warrants to
immediately undertake all necessary steps for the assignment, e.g. entry in the
books, particularly of current invoice lists, notification of the debtor, etc.
9.6
Should the contractual partner be a legal person, the
contractual partner's corporate body shall be personally liable - both as
jointly and severally - to KWB for the compliance with the obligations of this
Section 9 by the contractual partner.
10.
Requirement to make a complaint
10.1
The contractual partner is obligated to immediately check the
contractual goods or services upon receipt or performance with respect to
possible defects and completeness and to lodge a complaint in the event of any
defect either immediately or, if the defect is not immediately recognizable, at
most within a week of receipt and to exactly specify said defect in writing and
otherwise excluding any claims. This provision shall also apply to hidden
defects as soon as they are recognised. The lodging of a complaint regarding a
defect shall not entitle the contractual partner to a partial or full
withholding of payments.
10.2
If the contractual goods are commissioned by KWB or authorised
third parties, the contractual partner shall specify any defects in writing in
the log during commissioning. Otherwise the contractual goods shall be
considered accepted without any defects.
11.
Liability/warranty
11.1
KWB fulfils any existing warranty obligations only once the
contractual partner has fulfilled all its contractual obligations and/or
duties. Prerequisite for the existence of all warranty and/or guarantee claims
of the contractual partner is that the contractual goods were put into
operation by KWB or its authorised third parties. A warranty/liability for
activities of other third parties, e.g., unauthorized installers or
electricians shall be excluded.
11.2
The warranty period is two years. It will not be extended or
suspended by improvements or attempts to achieve improvements. Improvements
outside of the warranty period shall have no legal or factual meaning. In the
event of a partial delivery of contractual goods and/or the partial rendering
of services, the warranty period will commence on execution/rendering of the
respective delivery/service.
11.3
KWB has the right to inspect an asserted defect. KWB may either
itself remove defects or commission third parties to remove the defect and may
also request to be sent defective goods or parts of these for improvement
purposes as well as improve them on-site. KWB shall generally be entitled to
determine the execution of the fulfilment of the warranty. If the contractual
partner is notified by a customer about a defect in contractual goods that have
already been delivered, further processing shall be immediately coordinated
with KWB. In the absence of a separate written agreement, KWB shall not assume
any costs or expenses of the contractual partner and/or other third parties
with respect to their activities regarding the identification of the defect
and/or its removal.
11.4
Any change and / or modification of the contractual goods or in
the operation of the contractual goods not expressly authorised by KWB in
writing or their operation in conjunction with other devices or accessories the
compatibility of which has not been expressly confirmed by KWB, any
inappropriate operation/use (e.g. the use of fuels and/or water not in
accordance with standards which do not correspond to VDI 2035 or ÖNORM H
5195-1; inappropriate and / or excessive use) leads to the exclusion of the
warranty. Any liability or warranty for compatibility of the contractual goods
with other products, systems, plants or parts, as well as the suitability
thereof for a specific use shall be excluded unless expressly permitted in
writing.
11.5
A warranty based on § 922(1) sentence 2, second half sentence
Austrian General Civil Code (ABGB) (description, sample) and § 922(2) ABGB is
excluded.
11.6
In the event of an existing maintenance agreement, in which the
right to contract termination has
been waived for three (3) years, the warranty period will be extended to three
(3) years in total after handover, with the exception of the heat exchanger. In
the event of an orderly installation of a return flow boost, the warranty
period for a heat exchanger shall extend to a period of eight (8) years in
total after handover, independent of the conclusion of a maintenance agreement.
11.7
If contractual goods are manufactured by KWB based on
construction details, drawings or models of the contractual partner, KWB shall
not be obligated to verify the accuracy or technical feasibility of these
specifications and/or technical data. KWB's liability and warranty in such a
case shall only encompass contractual goods manufactured in accordance with the
provided data.
11.8
When taking on repair orders or when performing work on used
plants or systems of other manufacturers, KWB shall not accept any liability
and/or shall not extend any warranty for these systems.
11.9
KWB shall be liable for any other damage except for damage to
life, body and health only within the scope of mandatory law; thus, according
to current legislation, only in the case wilful intent and gross negligence. If
the contractual partner asserts any claims for damages against KWB, the
contractual partner shall also bear the burden of proof.
11.10
KWB shall only be liable for the costs of a defect removal taken
on by the contractual partner itself, if this defect removal was authorised in
writing by KWB and if KWB is to blame for the defect.
11.11
Any claims for compensation by the contractual partner shall be
limited to the simple net value of the goods or the net compensation for the
affected contractual goods. A liability for lost profit, particularly by the
contractual partner, and also generally for subsequent damages and pure
economic loss, are excluded in any case.
11.12
Any recourse claims against KWB, e.g. based on the Product
Liability Act, shall be excluded.
12.
Offsetting/assignment
12.1.
Offsetting against counter claims, e.g. claims for damages,
and/or the retention by the contractual partner, for whatever reason, is not
permitted.
12.2.
Any cession and/or any transfer of claims by the contractual
partner requires prior written consent by KWB.
13.
Data privacy
13.1
KWB has the right to store personal data relating to the
contractual partner and to use it at its discretion.
13.2
The contractual partner undertakes to keep confidential any
information that it receives during the execution of this contract and shall
not disclose it to any third parties.
14.
Jurisdiction/place of fulfilment
14.1
Any disputes from any contracts concluded with the contractual
partner including the issue of their validity and their prior and subsequent
effects are exclusively decided by the competent court at the location of KWB's
registered office, according to KWB's discretion or also by the competent
court, in whose jurisdiction the contractual partner has its registered office,
a branch or an asset.
14.2
Regardless of the delivery and/or service location, it is agreed
that the location of the registered office of KWB shall be the place of
fulfilment.
15.
Choice of law/severability/waiver of avoidance
15.1.
All contracts and business relationships between KWB and the contractual
partner are exclusively subject to Austrian law, with the exclusion of the UN
Sales Convention and any conflict of laws provisions.
15.2.
Should any provisions of these General Terms and Conditions be
or become legally invalid or unenforceable, the validity of the remaining
provisions shall not be affected and the contract shall retain its legal
validity. Any unenforceable or invalid provisions shall be reduced to a legally
valid level (reduction of invalid provisions to preserve validity) or be replaced
by such valid and enforceable provisions that are most consistent with the
originally intended purpose.
15.3.
The contractual partner waives its right, as far as permitted by
mandatory law, to appeal contracts concluded with KWB for the purpose of a
modification and/or cancellation and/or to assert that they were not concluded
in a legally valid manner and/or are null and void.
© KWB,
in effect as of January 2010, misprints and printing errors excepted!