Terms and Conditions
These terms and conditions are a courtesy translation. The legally binding version is the German original.
General Terms and Conditions of Sale (GTC)
1. Scope of application
1.1. These terms and conditions apply between us (H.D. Eckhardt GesmbH) and natural and legal persons (hereinafter "Customer") for the business transaction in question as well as for all future transactions, even if no express reference is made thereto in individual cases, in particular for future supplementary or follow-up orders.
1.2. The version of our GTC current at the time of conclusion of the contract shall apply, available on our website (https://www.hdeckhardt.com) and transmitted to the Customer.
1.3. We contract exclusively on the basis of our GTC.
1.4.Terms and conditions of the Customer or amendments or supplements to our GTC require our express written consent to be valid.
1.5. Terms and conditions of the Customer shall not be recognised even if we do not expressly object after receipt thereof.
2. Offers, conclusion of contract
2.1. Our offers are non-binding.
2.2.Assurances, warranties 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.
2.3. Information about our products and services stated in catalogues, price lists, brochures, advertisements at trade fairs, circulars, advertising mailings or other media (information material) that is not attributable to us must be presented to us by the Customer if the Customer bases its decision to place an order on such information. In this case, we can comment on the accuracy thereof. If the Customer breaches this obligation, such information shall be non-binding unless it has been expressly declared in writing to form part of the contract.
2.4.Cost estimates are prepared without guarantee and are subject to charge.
3. Prices
3.1. Price quotations are generally not to be understood as lump-sum prices.
3.2. For services ordered by the Customer that are not covered by the original order, in the absence of a wage agreement, there is an entitlement to reasonable remuneration.
3.3. Price quotations are exclusive of the applicable statutory VAT and ex warehouse. Packaging, transport, loading and shipping costs as well as customs and insurance shall be borne by the Customer. We are only obliged to take back packaging if expressly agreed.
3.4. The proper and environmentally sound disposal of old material shall be arranged by the Customer. If we are separately commissioned to do so, the Customer shall additionally remunerate us to the extent agreed, or in the absence of a fee agreement, at a reasonable rate.
3.5. We are entitled on our own initiative, as well as obliged upon application by the Customer, to adjust the contractually agreed fees if changes of at least 3% have occurred since the conclusion of the contract with regard to (a) labour costs by law, regulation, collective agreement, works agreements or (b) other cost factors necessary for the provision of services, such as procurement costs of the materials used, based on recommendations of the Joint Commissions or changes in national or world market prices for raw materials, exchange rates, etc. 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 we are not in default.
3.6. Remuneration for continuing obligations is agreed as value-secured according to the CPI 2010 and fees are adjusted accordingly. The month in which the contract was concluded shall serve as the base period.
3.7. Costs for travel, daily and overnight allowances shall be charged separately. Travel time shall count as working time.
4. Customer-supplied goods
4.1. If equipment or other materials are supplied by the Customer, we are entitled to charge the Customer a handling surcharge of 1% of the value of the supplied equipment or materials.
4.2. Such equipment and other materials supplied by the Customer are not subject to warranty. The quality and operational readiness of supplied items are the responsibility of the Customer.
5. Payment
5.1. One third of the fee is due at the conclusion of the contract and the remaining payment before delivery, unless there is a different written agreement.
5.2. Entitlement to a cash discount requires an express written agreement.
5.3.Payment designations made by the Customer on transfer slips are not binding on us.
5.4. If the Customer is in default of payment under other contractual relationships with us, we are entitled to suspend the fulfilment of our obligations under this contract until the Customer has fulfilled its obligations.
5.5. We are then also entitled to call in all claims for services already rendered from the ongoing business relationship with the Customer.
5.6. In the event of exceeding the payment deadline, even if only with regard to a single partial performance, granted benefits (discounts, reductions, etc.) shall be forfeited and added to the invoice.
5.7. In the event of default of payment, the Customer undertakes to reimburse us for the costs necessary and appropriate for debt collection (reminder costs, collection fees, legal costs, etc.).
5.8. In accordance with Section 456 of the Austrian Commercial Code (UGB), in the event of culpable default of payment, we are entitled to charge 9.2% above the base interest rate.
5.9. We reserve the right to claim further damages for default.
5.10. The Customer shall only be entitled to set-off insofar as counter-claims have been established by a court or acknowledged by us.
5.11. For reminders necessary and appropriate for collection, the Customer undertakes to pay reminder fees per reminder in the amount of EUR 15.00 in the event of culpable default of payment, provided this is in reasonable proportion to the claim being pursued.
6. Credit check
6.1. The Customer expressly consents to the transmission of its data exclusively for the purpose of creditor protection to the state-privileged creditor protection associations Alpenlaendischer Kreditorenverband (AKV), Oesterreichischer Verband Creditreform (OEVC), Insolvenzschutzverband fuer Arbeitnehmer oder Arbeitnehmerinnen (ISA) and Kreditschutzverband von 1870 (KSV).
7. Customer cooperation obligations
7.1. Our obligation to commence performance shall begin at the earliest once all technical details have been clarified, the Customer has created the technical and legal prerequisites (which we will be happy to communicate upon request), we have received agreed advance payments or security deposits, and the Customer has fulfilled its contractual advance performance and cooperation obligations, in particular those listed in the following sub-clauses.
7.2. In the case of installations to be carried out by us, the Customer is obliged to ensure that work can commence immediately upon arrival of our installation personnel.
7.3. The Customer shall arrange for the necessary permits from third parties as well as notifications and permits from authorities at its own expense. These can be enquired about from us.
7.4. The energy and water quantities required for the performance of services including trial operation shall be provided by the Customer at its own expense.
7.5. The Customer shall provide us free of charge with lockable rooms inaccessible to third parties for the duration of service performance for the accommodation of workers and for the storage of tools and materials.
7.6. The Customer is liable for ensuring that the necessary structural, technical and legal prerequisites for the work to be produced or the purchase object exist, as described in the contract or in information provided to the Customer before the conclusion of the contract, or which the Customer should have known due to relevant specialist knowledge or experience.
7.7. The Customer is likewise liable for ensuring that the technical installations, such as supply lines, cabling, networks and the like, are in technically faultless and operational condition and are compatible with the works or purchase objects to be produced by us.
7.8. We are entitled, but not obliged, to inspect these installations for a separate fee.
7.9. In particular, before the start of installation work, the Customer shall provide unsolicited the necessary information regarding the location of concealed electrical, gas and water lines or similar installations, escape routes, other structural obstacles, possible sources of danger, as well as the necessary structural data.
7.10. Order-related details of the necessary information can be requested from us.
7.11. The Customer bears sole responsibility for the design and functionality of supplied parts. There is no obligation on our part to examine documents provided by the Customer, transmitted information or instructions — beyond the preparation 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 respect is excluded. The obligation to issue the certification may be contractually transferred to the Customer who places the delivery item on the market.
The Customer is not entitled to assign claims and rights from the contractual relationship without our written consent.
8. Performance of services
8.1. We are only obliged to take into account subsequent modification and extension requests of the Customer if they are technically necessary to achieve the purpose of the contract.
8.2. Minor objectively justified changes to our performance that are reasonable for the Customer shall be deemed approved in advance.
8.3. If, for whatever reason, an amendment or supplement to the order occurs after the order has been placed, the delivery/performance period shall be extended by a reasonable period.
8.4. If the Customer requests performance within a shorter period after the conclusion of the contract, this constitutes a contract amendment. This may necessitate overtime and/or additional costs due to the acceleration of material procurement, and the remuneration shall increase in reasonable proportion to the additional expense required.
Objectively justified (e.g. plant size, construction progress, etc.) partial deliveries and services are permissible and may be invoiced separately.
8.6. If delivery on call is agreed, the item of performance/purchase shall be deemed called off no later than six months after the order.
9. Delivery and performance deadlines
9.1. Delivery/performance deadlines and dates are only binding on us if they have been fixed in writing. Any deviation from this formal requirement also requires written form.
9.2. Deadlines and dates shall be postponed in cases of force majeure, strikes, unforeseeable delays by our suppliers not caused by us, or other comparable events beyond our control, for the period during which the relevant event persists. The right of the Customer to withdraw from the contract in the event of delays that make adherence to the contract unreasonable shall remain unaffected.
9.3. If the commencement or execution of performance is delayed or interrupted due to circumstances attributable to the Customer, in particular due to breach of the cooperation obligations pursuant to clause 7, performance deadlines shall be extended and completion dates postponed accordingly.
9.4. We are entitled to charge for the resulting necessary storage of materials and equipment and the like at our premises at 1% of the invoice amount per commenced month of performance delay, whereby the Customer's obligation to pay and to accept delivery shall remain unaffected.
9.5. In the event of withdrawal from the contract due to default, the Customer must set an additional grace period by registered letter with simultaneous threat of withdrawal.
10. Transfer of risk
10.1. Risk shall pass to the business Customer as soon as we make the purchase object, material or work available for collection at our premises or warehouse, deliver it ourselves, or hand it over to a carrier.
10.2. The business Customer shall insure itself accordingly against this risk. We undertake to arrange transport insurance at the Customer's written request and expense. The Customer approves any customary method of dispatch.
11. Default of acceptance
11.1. If the Customer is in default of acceptance for more than 8 weeks (refusal of acceptance, default with advance performance or otherwise, no call-off within a reasonable time for call-off orders), and the Customer has not taken steps to eliminate the circumstances attributable to it which delay or prevent the performance of services despite a reasonable grace period, we may, while the contract remains in force, dispose otherwise of the equipment and materials specified for the performance of services, provided that in the event of continuation of the performance of services, we procure replacements within a period appropriate to the respective circumstances.
11.2. In the event of the Customer's default of acceptance, we are likewise entitled to store the goods at our premises, for which a storage fee in accordance with clause 9.4 shall apply, while insisting on performance of the contract.
11.3. In the event of a justified withdrawal from the contract, we may demand from the Customer liquidated damages in the amount of 30% of the gross order value without proof of actual damage.
11.4. The assertion of higher damages is permissible.
12. Retention of title
12.1. The goods delivered, installed or otherwise transferred by us shall remain our property until payment in full.
12.2. Resale is only permissible if we have been notified in advance, stating the name and exact address of the buyer, and we have consented to the sale. In the event of our consent, the purchase price claim shall be deemed assigned to us as of now.
12.3. Until full payment of the fee or purchase price, the Customer shall record this assignment in its books and on its invoices and notify its respective debtors thereof. Upon request, the Customer shall provide us with all documents and information necessary to assert the assigned claims and rights.
12.4. If the Customer is in default of payment, we are entitled to demand the return of the reserved goods upon setting a reasonable grace period.
12.5. The Customer shall notify us immediately before the opening of insolvency proceedings against its assets or the attachment of our reserved goods.
12.6. The Customer expressly consents to our entering the premises where the reserved goods are located for the purpose of asserting our retention of title.
12.7. Necessary and reasonable costs for appropriate legal pursuit shall be borne by the Customer.
12.8. The assertion of retention of title shall only constitute a withdrawal from the contract if this is expressly declared.
12.9. We may freely and optimally realise the returned reserved goods.
12.10. Until full payment of all our claims, the item of performance/purchase may not be pledged, transferred by way of security or otherwise encumbered with third-party rights. In the event of attachment or other claims by third parties, the Customer is obliged to draw attention to our ownership right and to notify us immediately.
13. Third-party intellectual property rights
13.1. For delivery items which we manufacture according to Customer documents (design specifications, drawings, models or other specifications, etc.), the Customer alone warrants that the production of these delivery items does not infringe third-party intellectual property rights.
13.2. If third-party intellectual property rights are nevertheless asserted, we are entitled to cease production of the delivery items at the Customer's risk until the third-party rights have been clarified, unless the invalidity of the claims is obvious.
13.3. The Customer shall hold us harmless and indemnify us in this respect.
13.4. We are entitled to demand reasonable cost advances from business Customers for any litigation costs.
13.5. We may likewise claim reimbursement from the Customer of necessary and useful costs incurred by us.
13.6. We are entitled to demand reasonable cost advances for any litigation costs.
14. 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 with our contribution shall remain our intellectual property.
14.2. Their use, in particular their transmission, reproduction, publication and making available, including even partial copying, as well as their imitation, adaptation or exploitation requires our express consent.
14.3. The Customer further undertakes to maintain confidentiality with respect to third parties regarding knowledge acquired from the business relationship.
15. Warranty
15.1. The warranty period for our services is one year from handover.
15.2. The time of handover is, in the absence of a different agreement (e.g. formal acceptance), the time of completion, at the latest when the Customer has taken the service into its control or has refused acceptance without stating reasons. On the day on which the Customer is notified of completion, the service shall be deemed to have been taken into its control in the absence of a justified refusal of acceptance.
15.3. If a joint handover is envisaged and the Customer fails to attend the handover date communicated to it, the handover shall be deemed to have taken place on that day.
15.4.Rectification of a defect alleged by the Customer shall not constitute acknowledgement of a defect.
15.5. The Customer must always prove that the defect already existed at the time of handover.
15.6. For the rectification of defects, the Customer shall make the system or equipment accessible to us without culpable delay and grant us the opportunity for inspection by us or experts appointed by us.
15.7.Defect notices and complaints of any kind must be reported in writing at our registered office immediately (within 7 working days at the latest) with the most precise possible defect description and indication of possible causes, under penalty of forfeiture of warranty claims. The complained goods or works are to be handed over by the Customer, if feasible.
15.8. If defect claims by the Customer are unjustified, the Customer is obliged to reimburse us for expenses incurred in determining the absence of defects or in rectifying the error.
15.9. Any use or processing of the defective delivery item which threatens further damage or makes cause identification more difficult or impossible shall be ceased immediately by the Customer, unless this is unreasonable.
15.10. We are entitled to carry out or have carried out any investigation we deem necessary, even if such investigation renders the goods or work pieces unusable. If such investigation reveals that we are not responsible for any defects, the Customer shall bear the costs of the investigation at a reasonable fee.
15.11. Transport and travel costs incurred in connection with defect rectification 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 clause 7.
15.12. The Customer must grant us at least two attempts to rectify defects.
15.13. We may avert a rescission claim by improvement or a reasonable price reduction, provided it is not a material and irremediable defect.
15.14. If the items of performance are produced on the basis of specifications, drawings, plans, models or other specifications of the Customer, we only warrant proper execution in accordance with the terms.
15.15. No defect exists where the work is not fully suitable for the agreed use if this is based exclusively on actual circumstances deviating from the information available to us at the time of performance because the Customer fails to fulfil its cooperation obligations pursuant to clause 7.
15.16. Likewise, it does not constitute a defect if the Customer's technical installations such as supply lines, cabling, networks, etc. are not in technically faultless and operational condition or are not compatible with the delivered items.
16. Liability
16.1. For breach of contractual or pre-contractual obligations, in particular for impossibility, default, etc., we are liable for financial losses only in cases of intent or gross negligence due to technical peculiarities.
16.2. Liability is limited to the maximum liability amount of any liability insurance taken out by us.
16.3. This limitation also applies to damage to an item that we have accepted for processing.
16.4. Damage claims must be asserted in court within two years, subject to forfeiture.
16.5. The limitations or exclusions of liability also cover claims against our employees, representatives and vicarious agents for damages caused by them to the Customer without reference to a contract of their own with the Customer.
16.6. Our liability is excluded for damage caused by improper handling or storage, overuse, non-compliance with operating and installation instructions, faulty assembly, commissioning, maintenance or servicing by the Customer or third parties not authorised by us, or natural wear and tear, insofar as such event was causal for the damage. Liability is also excluded for failure to carry out necessary maintenance.
16.7. If and insofar as the Customer is able to claim insurance benefits through its own or an insurance policy taken out in its favour (e.g. liability insurance, comprehensive insurance, transport, fire, business interruption and other insurance) for damage for which we are liable, the Customer undertakes to claim the insurance benefit and our liability to the Customer shall be limited to the disadvantages the Customer incurs by claiming such insurance (e.g. higher insurance premiums).
16.8. The product properties owed are those which the Customer can expect with regard to the approval regulations, operating instructions and other product-related instructions and information (especially control and maintenance) from us, third-party manufacturers or importers, taking into account the Customer's knowledge and experience. The Customer as reseller shall take out adequate insurance for product liability claims and hold us harmless and indemnify us with regard to recourse claims.
2. Severability clause
2.1. Should individual parts of these GTC be invalid, the validity of the remaining parts shall not be affected.
2.2. The parties already now undertake to agree on a substitute provision — based on the perspective of honest contracting parties — which comes closest to the economic result, taking into account industry practice, of the invalid provision.
3. General
3.1.Austrian law shall apply.
3.2.The UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
3.3.Place of performance is the registered office of the company (Grossebersdorf).
3.4.Place of jurisdiction for all disputes arising from the contractual relationship or future contracts between us and the Customer shall be the court having jurisdiction for our registered office.
3.5.Changes to the Customer's name, company, address, legal form or other relevant information must be communicated to us in writing without delay.
3.6. The current uncertainty due to the Corona pandemic (force majeure) is known to the Customer and us and has been included in the basis of the transaction. The Customer expressly declares agreement with the legal consequences (penalty payment pursuant to 11.3.) in the event of default of acceptance as well as cancellation fees in the event of withdrawal (clause 11).
Notes:
These GTC have been prepared in accordance with the currently applicable legislation. It is noted, however, that all information is provided without guarantee despite the most careful preparation, and that liability of the author, publisher or the Austrian Chambers of Commerce is excluded. Independent amendments are possible but are made exclusively at one's own risk. Formulations in the masculine form apply equally to both genders.