GTC

General Terms and Conditions of plasmo Industrietechnik GmbH

As on 06/2018

1. Validity

1.1. These general terms and conditions are applicable between

plasmo Industrietechnik GmbH, 1200 Vienna, Dresdner Strasse 81-85 (PLASMO) and clients, who can be natural and legal persons (CLIENT) for this corporate legal transaction as well as for all future transactions, even if in individual cases, especially for prospective supplementary or follow-on contracts, in which they are not expressly referred to.

1.2. The version of our terms and conditions valid at the time of conclusion of the contract are applicable, they are available on our Homepage (www.plasmo.eu) and they are also sent to the CLIENT.

1.3. We sign contracts only on the basis of our terms and conditions.

1.4. Terms and conditions of the CUSTOMER or modifications or amendments to our terms and conditions require our explicit written approval in order to be valid.

1.5. General terms and conditions of the CUSTOMER shall also not be accepted if we do not expressly contradict them again upon receipt.

2. Offers, conclusion of contract

2.1. Our offers are non-binding.

2.2. Promises, assurances and guaranties from our side or agreements deviating from these terms and conditions in connection with the conclusion of the contract become binding only with our written confirmation.

2.3. For information about our products and services which is given in catalogues, price lists, pamphlets, advertisements on fair stands, newsletters, advertising materials or other media (handouts), for which we are not responsible, the CLIENT must verify the accuracy of the information with us, if the CLIENT uses such information for making a decision to commission us. We can then tell if the information is accurate. Should the CLIENT breach this obligation, such information is non-binding, unless expressly declared as part of the contract in writing.

2.4. Quotations are given without warranty and for a fee.

3. Prices

3.1. As a rule, the indicated prices are not to be understood as lump sum prices, unless they are explicitly specified as such.

3.2. For services requested by the CLIENT, that are not covered in the original order, adequate compensation shall be claimed for the lack of a wage agreement.

3.3. All prices are exclusive of the respective applicable legal VAT and are Ex Works. Costs for packaging, transport, loading and shipping as well as the customs duties and insurance fees shall be borne by the CLIENT. We are obliged to take the packaging back only upon express agreement.

3.4. The correct and environmentally friendly disposal of waste material must be arranged by the CLIENT. If we are specially commissioned to carry out the disposal, adequate compensation must be paid by the CLIENT additionally, amounting to the remuneration agreed for this, because of the lack of a wage agreement.

3.5. We are entitled, and we are obligated upon request of the CLIENT, to adjust the contractually agreed charges, if changes have happened amounting to at least 3% with regard to (a) labour costs because of legislation, regulations, collective agreement, works agreement or (b) other cost factors required for providing service such as procurement costs of materials to be used because of recommendations of the Joint Commission or because of changes in national or world market prices for raw materials, exchange rates etc., since the conclusion of contract. The charges are adjusted to the extent to which the actual manufacturing costs from the time of conclusion of the contract have changed compared to the costs at the time of the actual provision of service, provided that we are not in arrears.

3.6. The remuneration for continuous obligations is agreed as inflation adjusted according to consumer price index 2010, and in this way the remuneration is adjusted. The month in which the contract was concluded is taken as the starting point.

3.7. Costs for travel, daily allowance and overnight accommodation are charged separately. Designated lump sum prices are excluded from it. Travel time shall be settled through reduced hourly rates.

4. Goods provided

4.1. If devices or other materials are provided by the CLIENT, we have the right to charge the CLIENT 2% of the value of the provided devices or the material as handling surcharge.

4.2. Such devices and other materials provided by the CLIENT are not a subject of warranty. The quality and operational readiness of free issue equipment is the responsibility of the CLIENT.

5. Payment

5.1. In the project business, our standard terms of payment are applicable (30% of the payment is due when the contract is concluded, 60% upon delivery and the remaining after completion of service or final acceptance.)

5.2. Spare parts and other services (software, hardware, service calls, etc.) must be paid fully immediately after the provision of service.

5.3. The entitlement to a cash discount requires an explicit written agreement.

5.4. Payment references made by the CLIENT on transfer receipts are not binding for us.

5.5. If the CLIENT defaults on any payments within the scope of other contractual relationships with us, we have the right to suspend the fulfilment of our obligations under this contract till the CLIENT fulfils its obligations.

5.6. We also have the right to demand the payment for all claims for the services that have been provided already from this business relationship with the CLIENT.

5.7. If the payment has not been made by the deadline, even if only for an individual partial performance of service, the benefits granted become invalid (discounts, deductions) and are charged in the invoice.

5.8. In case of default of payment, The CLIENT is obligated to reimburse us for the costs required and appropriate (dunning costs, collection charges, lawyer’s fees, etc.) for ensuring that we get the payment.

5.9. According to § 456 UGB (Austrian Commercial Code) in case of default of payment, we have the right to charge 12% on the base rate.

5.10. We reserve the right to assert claims for further damage caused by delay.

5.11. The CLIENT has the right to set-off claims only to the extent that counterclaims have been legally established or accepted by us.

6. Credit assessment

6.1. The CLIENT gives its explicit consent to transfer its data only for the purpose of creditor protection to the official creditor protection associations, these include Alpenländischer Kreditorenverband (AKV) (Alpine Creditors Association), Österreichischer Verband Creditreform (ÖVC) (Austrian Association for Credit Reform), Insolvenzschutzverband für Arbeitnehmer oder Arbeitnehmerinnen (ISA) (Insolvency protection association for workers) and Kreditschutzverband (KSV) (credit protection association) from 1870.

7. The CLIENT’S obligation to cooperate

7.1. Our obligation to perform the service starts at the earliest as soon as all the technical details have been clarified, the CLIENT has met the technical and legal requirements (which we can send you upon request), we have received the agreed advance payments or collaterals, and the CLIENT has fulfilled its contractual pre-performance obligations and obligations to cooperate, especially the ones mentioned in the sub-points below.

7.2. For the installations to be carried out by us, the CLIENT is obligated to ensure that the work can start immediately after the arrival of our installation personnel.

7.3. The CLIENT must arrange for the necessary permits from third parties and notifications and authorisations in relation to the authorities at its own expense. These can be requested from us.

7.4. The electricity supply and the water required for the performance of the service and the trial operation must be provided by the CLIENT at its expense.

7.5. For the duration of performance of service, the CLIENT must provide us with lockable rooms for free, that cannot be accessed by third parties, for the workers to stay and for the storage of tools and materials.

7.6. The CLIENT shall be liable for ensuring that the necessary structural, technical and legal pre-requisites are available for the work to be done or the purchase object to be manufactured, which were defined in the contract or in the information given to the CLIENT before the conclusion of contract, or which the CLIENT should have known based on its relevant expertise or experience.

7.7. The CLIENT is also liable to ensure that the technical equipment, such as supply lines, cabling, networks etc., are in excellent technical and operational condition and they are compatible with the work to be done by us or purchase items to be produced by us.

7.8. We shall be entitled, but not obligated, to check these equipment for a separate fee.

7.9. Before the installation work starts, the CLIENT must especially provide all the necessary information about the location of concealed electricity, gas and water lines or similar installations, escape routes, other structural barriers, possible safety hazards and the necessary data on statics without being asked for the same.

7.10. Job related details of the information required can be obtained from us.

7.11. The CLIENT alone shall be responsible for the construction and functionality of the parts provided. An inspection requirement does not exist with regard to the delivery item for any documents, information transferred or instructions provided by the CLIENT, over and above the attached technical construction file and the certificate for compliance with the machinery directive and at most other applicable guidelines, and any liability in this respect on our part is excluded. The obligation to present the certificate can be contractually imposed on the CLIENT, who brings the delivery item to the market.

7.12. The CLIENT is not entitled to assign claims and rights under the contractual relationship without our written approval.

8. Performance of service

8.1. We are obligated to consider the subsequent
requests of the CLIENT for amendments and extensions, only if it is technically required to achieve the contractual purpose.

8.2. Objectively justified minor changes in our performance of service which are reasonable for the CLIENT are considered as approved in advance.

8.3. If there is a modification or amendment to the order after the order is placed, due to any reason, then the deadline for delivery/service is extended by a reasonable period of time.

8.4. If the CLIENT requests performance of service within a shorter time period after the conclusion of contract, then it constitutes a contract amendment. Owing to such a request, working overtime can become necessary and/or additional costs can be accrued because of the need to speed up the material procurement, and the remuneration increases appropriately in relation to the additional expenditure required.

8.5. Objectively (e.g. size of the installation, construction progress) justified partial deliveries and services are allowed and can be billed separately.

8.6. If delivery on call has been agreed upon, the object of service/purchase shall be deemed as called six months after the order at the latest.

9. Deadlines for deliveries and services

9.1. Deadlines and schedules for deliveries or services are binding on us only if they are confirmed in writing. Changes to this written form requirement must also be made in writing.

9.2. Deadlines and due dates are postponed in the event of force majeure, strike, unforeseeable delays, delays by our sub-contractors for which we are not responsible, or other similar events which are beyond our control, for the period for which such events are taking place. The right of the CLIENT to withdraw from the contract in case of delays, which make it unreasonable for the client to be bound by the contract, remains unaffected.

9.3. If the beginning of the performance of service or the performance itself is delayed or interrupted because of situations for which the CLIENT is responsible, especially because of the violation of the obligation to cooperate according to point 7, then the service deadlines are extended proportionately and the dates for completion are postponed accordingly.

9.4. We are entitled to charge for the storage of materials and devices etc. thus required in our company, amounting to 1.5% of the invoiced sum for each month from the delay in performance, whereby the obligation of the CLIENT to pay and its acceptance obligation remain unaffected by this.

9.5. For withdrawing from the contract because of delay, an extension period must be specified by the CLIENT in a registered letter in which the client gives the withdrawal notice.

10. Risk assumption

10.1.  The risk shall pass on to the entrepreneurial CLIENT as soon as we have the purchase object, the material, or the work ready for collection in the plant or the warehouse, as soon as we deliver it ourselves or hand it over to a carrier.

10.2.  The entrepreneurial CLIENT shall take out adequate insurance against this risk. We undertake to take out transport insurance upon a written request of the CLIENT, at the client’s expense. The CLIENT accepts every conventional shipping method.

11. Default of acceptance

11.1. If the CLIENT is in default of acceptance for more than 4 weeks (refusal of acceptance, delay in advance payment or else, no call within a reasonable period for order on call), and the CLIENT has not taken measures to remedy the situations for which the client is responsible despite specifying an appropriate extension period, and this delays or prevents the performance of service, then with the contract in force we can use the devices and materials specified for the performance of service in a different way, as long as in case the service is continued, we can acquire it again within a period appropriate for the respective situation.

11.2. In the event of default of acceptance by the CLIENT, we also have the right to store the goods with us, for the possibility of fulfilment of the contract, for which we are entitled to a storage charge according to point 9.4.

12. Retention of title

12.1. The goods delivered, installed or otherwise handed over by us shall remain our property until full payment has been made.

12.2. Resale is only permitted if we have been notified of the same well in time, specifying the name and the exact address of the buyer, and if we give a written approval for the sale. If we give our approval, the purchase price claim is deemed to have been assigned to us already.

12.3. In the books and invoices, the CLIENT must make a note of this assignment of claim till the complete payment of the remuneration or purchase price and indicate it to the client’s respective debtor. Upon request, the client must provide us with all the documents and information required for asserting the assigned receivables and claims.

12.4. Should the CLIENT be in default of payment, with an appropriate extension period we have the right to demand the goods subject to retention of title.

12.5. Before the opening of a bankruptcy procedure, the CLIENT must inform us immediately about the client’s assets or the seizure of our goods subject to retention of title.

12.6. The CLIENT gives explicit consent, for us to enter the location of the goods subject to retention of title to assert our retention of title.

12.7. The costs that are necessary and appropriate for the proper legal action shall be borne by the CLIENT.

12.8. Asserting the retention of title constitutes a withdrawal from contract only if this has been expressly declared.

12.9. We may use the recovered goods subject to retention of title as we see fit and to our best advantage.

12.10. Till the complete payment of all our claims, the service/purchase object may neither be pledged, assigned nor otherwise encumbered with rights of third parties. In case of seizure or other claims, the CLIENT is obligated to make reference to our right of ownership and to notify us without delay.

13. Property rights of third parties

13.1. For the delivery items which we make according to the client’s documents (construction details, drawings, models or other specifications, etc.), only the CLIENT guarantees that in the manufacturing of these delivery items, property rights of third parties are not violated.

13.2. However, if property rights of third parties are still asserted, we have the right to suspend production of the delivery items at the risk of the CLIENT till the rights of third parties are clarified except the claim is obviously not justified.

13.3. In this matter, the CLIENT shall indemnify us and hold us harmless.

13.4. We have the right to demand appropriate advance payments from the entrepreneurial CLIENT for any procedural costs.

13.5. Similarly, we can claim compensation for the costs spent by us, which were necessary and useful, from the CLIENT.

13.6. We have the right to demand appropriate advance payments for any procedural costs.

14. Our intellectual property

14.1. Delivery items and the related detailed design documents, plans, sketches, cost estimates and other documents as well as the software provided by us or developed because of our contribution shall remain our intellectual property.

14.2. Using, especially transferring, reproducing, publishing and providing the aforementioned documents and making copies of them in parts, copying, editing or using them needs our explicit approval.

14.3. Furthermore, the CLIENT is obligated to maintain confidentiality with respect to third parties for knowledge that the client has gained from the business relationship.

15. Guarantee

15.1. The guarantee period for our services is 24 months from delivery to the end customer.

15.2. Unless otherwise agreed (e.g. formal acceptance), the date of delivery is the completion date, at the latest when the CLIENT has taken over the service in its power of disposition or when the takeover was refused without giving reasons. On the day on which the CLIENT is notified of the completion of work, the service is considered to be accepted in the client’s power of disposition, in the absence of a justified refusal of acceptance.

15.3. If a mutual delivery is planned, and the CLIENT is not present on the delivery date conveyed to him, then the delivery is considered to have happened on that day.

15.4. Correction of a defect claimed by the CLIENT shall not constitute an acknowledgement of a defect.

15.5. The CLIENT must always prove that the defect already existed at the time of delivery.

15.6. To remedy the defects, the CLIENT must make the installation or the device available to us without undue delay and the client must give us a chance to do an evaluation ourselves or by an expert appointed by us

15.7. In case of loss of guarantee, complaints and defects of any kind must be notified to our head office in writing immediately (at the latest after 10 working days), giving the most precise description of the fault and specifying the potential causes. The goods or the work about which a complaint has been made must be delivered by the CLIENT, as long as it is feasible.

15.8. If the claims regarding the defects made by the CLIENT are unfounded, the client is obligated to reimburse us for the expenses incurred for assessing the absence of defects or fault correction.

15.9. Any use or processing of the defective delivery item, through which a further damage could occur or remedying the cause could be impeded or prevented, must be stopped by the CLIENT immediately, as long as it is not unreasonable.

15.10. We have the right to carry out or arrange any investigation which we think is necessary, even if through this investigation the goods or parts become unusable. If such an investigation shows that we are not responsible for the fault, the CLIENT must bear the reasonable costs for this investigation.

15.11. Transport and travel costs incurred in connection with the remedy of the defect must be borne by the CLIENT. On our request, the CLIENT must provide the necessary labour; power and rooms for free of charge and the client must cooperate according to point 7.

15.12. To remedy the defects, the CLIENT must give us at least two attempts.

15.13. We can turn away a request to change by making improvements or with appropriate price reduction, as long as significant and irreparable defects are not involved.

15.14. If the delivery items are made based on the information, drawings, plans, models or other specifications of the CLIENT, then we provide a guarantee only for the performance according to the specifications.

15.15. No defect substantiates the fact that the plant is not fully suited for the agreed use, if this is only based on the actual conditions that deviate from the information presented to us at the time of provision of service, because the CLIENT is unable to meet its obligation to cooperate according to Point 7.

15.16. Similarly, this does not constitute a defect, if the technical installations of the CLIENT such as the supply lines, cabling, networks etc. are not in an excellent technical and operational condition or if they are not compatible with the delivered items.

16. Liability

16.1. Due to the violation of the contractual or pre-contractual obligations, especially due to impossibility of fulfilment, delay, etc. we shall be liable for financial losses only in cases of intent or gross negligence because of the technical aspects.

16.2. The liability is limited to the liability limit of a third party insurance taken by us.

16.3. This limit is also applicable for the damage caused to property that we have taken for processing.

16.4. Claims for damages must be asserted in court within two years in case of such an expiry.

16.5. The limitations or exclusions of liability also cover claims against our employees, representatives and agents for damages, which the CLIENT attaches to them without reference to a contract for their part with the CLIENT.

16.6. Our liability is excluded for damages caused by improper handling or storage, overuse, non-compliance with operating and installation regulations, faulty installation, commissioning, maintenance, repair by the CLIENT or by third parties that are not authorised by us, or natural wear-and-tear, if these events were the cause for the damage. Liability is also excluded for failure to carry out the required maintenance.

16.7. If and insofar as the CLIENT can claim insurance benefits for damages, for which we are liable, through the client’s own indemnity insurance or an indemnity insurance concluded on the client’s behalf (e.g. liability insurance, own damage claim, transport, fire, service interruption and others), the CLIENT is obligated to claim the insurance benefit and our liability towards the CLIENT shall be limited to the disadvantages, faced by the CLIENT because of such an insurance claim (e.g. higher insurance premiums).

16.8. Those product properties are owed, which could be expected by the CLIENT with regard to the licensing regulations, operating instructions and other product related instructions and notes (especially inspection and maintenance) from us, from third party producers or importers, considering the client’s knowledge and experience. As the reseller, the CLIENT must take out adequate insurance for product liability claims and indemnify us and hold us harmless with regard to claims to recourse.

17. Severability clause

17.1. If individual parts of these terms and conditions become ineffective, the validity of the remaining parts shall not be affected by this.

17.2. The parties hereby undertake to form a substitute provision already, considering the contracting parties are honest, which comes closest to the economic intent of the ineffective provision, taking into account the customs of the sector.

18. General information

18.1.  The Austrian law is applicable.

18.2.  The United Nations Convention on Contracts for the International Sale of Goods is excluded.

18.3.  The place of fulfilment is the registered office of the company (Vienna).

18.4.   The place of jurisdiction for all disputes arising from the contractual relationship or from future contracts between us and the CLIENT is the local court having jurisdiction for our company headquarters.

18.5. Any changes in the name of the company, the company, its address, its legal form or other relevant information must be informed by the CLIENT to us immediately in writing.