General Terms and Conditions – CABLEDOC

Version 01.03.2021

 

1. Scope of application

1.1 The General Terms and Conditions of CABLEDOC, Franz-Jonas-Platz 4, 1210 Vienna, hereinafter referred to as CABLEDOC, shall apply to legal transactions between companies, namely to the delivery of goods and, mutatis mutandis, also to the provision of services, whereby our Terms and Conditions of Assembly at http://www.cabledoc.com/index.php/agbs.html shall apply as an integral part thereof.

For software, the Software Terms and Conditions published by the Austrian Electrical and Electronic Manufacturers’ Association shall apply with priority, for assembly work, the Assembly Terms and Conditions of the Austrian Heavy Current and Light Current Industry and the Assembly Terms and Conditions of the Austrian Electrical and Electronic Manufacturers’ Association for Electromedical Technology, the current versions of which are available at http://www.feei.at/ .

1.2 Deviations from the terms and conditions stated in item 1.1 shall only be effective if accepted in writing by CABLEDOC.

2. Offer

2.1 Offers of the Seller shall be deemed to be subject to change and shall be valid for 4 weeks until revoked.

2.2 All offer and project documents must not be reproduced or made available to third parties without the consent of CABLEDOC, Franz-Jonas-Platz 4, 1210 Vienna. They may be reclaimed at any time and must be returned to the seller immediately if the order is placed elsewhere.

3. Conclusion of contract

3.1 The contract shall be deemed concluded when the Seller has sent a written order confirmation or a delivery after receipt of the order.

3.2 The information contained in catalogs, brochures and the like as well as other written or oral statements shall only be authoritative if they are expressly referred to in the order confirmation.

3.3 Subsequent amendments and additions to the contract shall require written confirmation in order to be valid.

4. Prices

4.1 Prices are ex works or ex Seller’s warehouse excluding VAT, packaging, loading, disassembly, return and proper recycling and disposal of waste electrical and electronic equipment for commercial purposes as defined in the Ordinance on Waste Electrical Equipment. If fees, taxes or other charges are levied in connection with the delivery, these shall be borne by the Buyer. If the delivery is agreed upon with shipment, then this as well as a transport insurance desired by the buyer is computed separately, but does not contain however the unloading and carrying. Packaging will only be taken back by express agreement.

4.2 In case of an order deviating from the total offer, the Seller reserves the right to change the price accordingly.

4.3 The prices are based on the costs at the time of the initial price offer. Should the costs increase by the time of delivery, the Seller shall be entitled to adjust the prices accordingly.

4.4 In the case of repair orders, the services identified by seller as expedient shall be performed and invoiced on the basis of the expenses incurred. This shall also apply to services and additional services whose expediency only becomes apparent during the execution of the order, whereby no special notification to the Buyer shall be required for this.

4.5 The Buyer shall be invoiced for the cost of preparing repair quotations or for appraisals.

5. Delivery

5.1 The delivery period shall commence on the latest of the following dates:

a) Date of order confirmation

b) Date of fulfillment of all technical, commercial and other requirements incumbent upon the Buyer;

c) Date on which the Seller receives a deposit or security to be paid before delivery of the goods.

5.2 Official approvals and any approvals of third parties required for the execution of installations shall be obtained by the Buyer. If such approvals are not obtained in time, the delivery period shall be extended accordingly.

5.3 The Seller shall be entitled to make and invoice partial or advance deliveries. If delivery on call has been agreed on, the goods shall be deemed to have been called at the latest 1 year after the order.

5.4 If unforeseeable circumstances or circumstances independent of the will of the parties occur, such as all cases of force majeure, which impede compliance with the agreed delivery period, the latter shall be extended in any case by the duration of such circumstances; these include in particular armed conflicts, official interventions and prohibitions, transport and customs clearance delays, transport damage, energy and raw material shortages, labor disputes as well as the failure of an essential supplier who is difficult to replace. These aforementioned circumstances shall also entitle to an extension of the delivery period if they occur with subcontractors.

5.5 If a contractual penalty for delay in delivery was agreed on between the contracting parties at the time of conclusion of the contract, it shall be paid in accordance with the following provision, whereby a deviation from this provision in individual points shall not affect its application in other respects: A delay in performance demonstrably caused by the sole fault of the Seller shall entitle the Buyer to claim a contractual penalty of no more than ½ %, but no more than a total of 5%, of the value of that part of the relevant total delivery which cannot be used as a result of the untimely delivery of an essential part, for each full week of delay, provided that the Buyer has suffered damage in this amount. Further claims from the title of delay are excluded.

6. Transfer of risk and place of fulfillment

6.1 Unless otherwise agreed, the delivery of the goods shall be deemed sold EXW according to INCOTERMS® 2010.

6.2 In the case of services, the place of fulfillment shall be that specified in the written order confirmation, secondarily that where the service is factually performed by the Seller. The risk for a service or an agreed partial service shall pass to the Buyer upon its fulfillment.

7. Payment

7.1 Unless payment terms have been agreed on, 1/3 of the price shall be due upon receipt of the order confirmation, 1/3 at the half-way point of delivery and the remainder upon delivery. Irrespective of this, the value added tax included in the invoice shall in any case be paid no later than 14 days after invoicing. In the event of the opening of insolvency proceedings against the assets of the Buyer or the rejection of an application for the opening of insolvency proceedings for lack of assets, deliveries shall only be made against cash in advance.

7.2 In the case of partial offsetting, the corresponding partial payments shall be due upon receipt of the respective invoice. This shall also apply to offsetting amounts resulting from subsequent deliveries or other agreements exceeding the original final amount, irrespective of the payment terms agreed upon for the main delivery.

7.3 Payments shall be effected free of charge to the Seller’s account office in the agreed currency. Any acceptance of a check or bill of exchange shall always be on account of payment only. All interest and expenses in connection therewith (such as collection and discount charges) shall be borne by the Buyer.

7.4 The Buyer shall not be entitled to withhold or set off payments due to warranty claims or other counterclaims.

7.5 A payment shall be deemed to have been made on the day on which the Seller can dispose of it.

7.6 If the Buyer is in default with an agreed payment or other performance under this or other legal transactions, the Seller may, without prejudice to other rights

a) postpone the fulfillment of its own obligations until such payment or other fulfillment has been effected and claim a reasonable extension of the delivery period,

b) call due all outstanding claims arising from this or other legal transactions and charge default interest on these amounts from the respective due date at the rate of 1.25% per month plus value added tax, unless the Seller proves costs in excess of this,

c) in the event of qualified insolvency, i. e. after two delays in payment, fulfill other legal transactions only against advance payment. In any case, the Seller shall be entitled to charge pre-litigation costs, in particular reminder fees and attorney’s fees.

7.7 Discounts or bonuses granted shall be conditional upon timely full payment.

7.8 The Seller retains title to all goods delivered by him until full payment of the invoice amounts plus interest and costs. The Buyer hereby assigns to the Seller, as security for the Seller’s purchase price claim, his claim arising from a resale of goods subject to retention of title, even if such goods have been processed, transformed or mixed. In the event of a resale with deferral of the purchase price, the Buyer shall be entitled to dispose of the goods subject to retention of title only on condition that he notify the secondary purchaser of the assignment by way of security at the same time as the resale or notes the assignment in his business records. Upon request, the Buyer shall disclose to the Seller the assigned claim together with his debtor and provide all information and documents required for the collection of the claim and notify the third-party debtor of the assignment. In the event of seizure or any other claim, the Buyer shall be obliged to point out the Seller’s right of ownership and to notify the Seller without delay.

8. Warranty and liability for defects

8.1 Subject to compliance with the agreed terms of payment, the Seller shall be obliged, in accordance with the following provisions, to remedy any defect affecting the functionality which exists at the time of handover and which is due to a defect in design, material or workmanship. No warranty claims may be derived from statements in catalogs, brochures, advertising literature and written or oral statements which have not been included in the contract.

8.2 The warranty period shall be 12 months, unless special warranty periods has been agreed upon individual delivery items. This shall also apply to delivery items and services which are firmly connected to a building or land. The warranty period shall commence at the time of the transfer of risk in accordance with clause 6.

8.3 For improved or replaced parts, the warranty period shall start anew, but shall in any case end 6 months after expiry of the original warranty period.

8.4 If delivery or performance is delayed for reasons beyond the Seller’s control, the warranty period shall commence 2 weeks after the Seller’s readiness to deliver or perform.

8.5 The warranty claim requires that the Buyer has notified the Seller in writing within a reasonable period of time of the occurrents of the defects that have occurred and that the Seller has received the notification. The Buyer shall prove the existence of the defect within a reasonable period of time, in particular by providing the Seller with the documents or data available to him. In the event of a defect covered by warranty pursuant to Section 8.1, the Seller shall, at his option, repair the defective goods or the defective part at the place of performance or have the defective goods or part sent to him for repair or make a reasonable price reduction.

8.6 All ancillary costs incurred in connection with the rectification of defects (e. g. for installation and removal, transport, disposal, travel and travel time) shall be borne by the Buyer. For warranty work at the Buyer’s premises, the necessary auxiliary personnel, lifting equipment, scaffolding and small materials etc. shall be provided free of charge. Replaced parts shall become the property of the Seller.

8.7 If goods are manufactured by the Seller on the basis of design data, drawings, models or other specifications provided by the Buyer, the Seller’s liability shall extend only to execution in accordance with the conditions.

8.8 Excluded from the warranty are defects resulting from arrangement and assembly not carried out by the Seller, inadequate equipment, non-observance of the installation requirements and conditions of use, overloading of the parts beyond the performance specified by the Seller, negligent or incorrect handling and use of unsuitable operating materials; this shall also apply to defects resulting from material provided by the Buyer. The Seller shall also not be liable for damage caused by actions of third parties, atmospheric discharges, overvoltages and chemical influences. The warranty does not apply to the replacement of parts subject to natural wear and tear. In case of sale of used goods, the Seller shall not assume any warranty.

8.9 The warranty shall expire immediately if the Buyer himself or a third party not expressly authorized by the Seller makes changes or repairs to the delivered items without the Seller’s written consent.

8.10 Claims according to § 933b ABGB (Austrian Civil Code) shall become statute-barred in any case upon expiry of the period specified in clause 8.2.

8.11 Provisions 8.1 to 8.10 shall apply mutatis mutandis to any liability for defects on other legal grounds.

9. Withdrawal from the contract

9.1 The prerequisite for the Buyer’s withdrawal from the contract shall be, unless a more specific provision has been made, a delay in delivery due to gross negligence on the part of the Seller and the unsuccessful expiry of a reasonable grace period set. The withdrawal shall be asserted by registered letter.

9.2 Irrespective of its other rights, the Seller shall be entitled to withdraw from the contract,

a) if the execution of the delivery or the start or continuation of the performance is impossible for reasons for which the Buyer is responsible or is further delayed despite the granting of a reasonable grace period,

b) if doubts have arisen as to the Buyer’s ability to pay and the Buyer, at the Seller’s request, neither makes advance payment nor provides suitable security prior to delivery,

c) if the extension of the delivery period due to the circumstances mentioned in item 5.4 amounts to more than half of the originally agreed delivery period in total, but at least 6 months, or

d) if the Buyer does not or not properly fulfill the obligations imposed on it by Clause 13.

9.3 Withdrawal may also be declared with respect to an outstanding part of the delivery or service for the above reasons.

9.4 If insolvency proceedings are instituted against the Buyer’s assets or if an application for the institution of insolvency proceedings is rejected for lack of sufficient assets, the Seller shall be entitled to rescind the contract without granting a grace period. If this withdrawal is exercised, it shall take effect immediately upon the decision that the company will not be continued. If the company is continued, a withdrawal shall only become effective 6 months after the opening of insolvency proceedings or after the rejection of the application for opening for lack of assets. In any case, the contract shall be rescinded with immediate effect unless the insolvency law to which the Purchaser is subject precludes this or if the rescission of the contract is indispensable to avert serious economic disadvantages to the Seller.

9.5 Notwithstanding the Seller’s claims for damages including pre-litigation costs, in the event of rescission, services or partial services already rendered shall be settled and paid for in accordance with the contract. This shall also apply insofar as the delivery or service has not yet been taken over by the Buyer as well as for preparatory actions performed by the Seller. In lieu thereof, the Seller shall also be entitled to demand the return of items already delivered.

9.6 Other consequences of the withdrawal are excluded.

9.7 The Buyer shall not be entitled to assert claims on grounds of laesio enormis, error or cessation of the basis of the contract.

10. Disposal of waste electrical and electronic equipment

10.1 The Buyer of electrical and electronic equipment for commercial purposes who is domiciled in Austria assumes the obligation to finance the collection and treatment of waste electrical and electronic equipment within the meaning of the Ordinance on Waste Electrical Equipment in the event that he himself is the user of the electrical or electronic equipment. If the Buyer is not the end user, he shall transfer the financing obligation in full to his customer by agreement and document this to the Seller.

10.2 The Buyer who is domiciled in Austria shall ensure that all information is made available to the Seller in order to be able to fulfill the Seller’s obligations as manufacturer/importer, in particular pursuant to §§ 11 and 24 of the Ordinance on Waste Electrical Equipment and the Waste Management Act.

10.3 The Buyer, who is domiciled in Austria, shall be liable to the Seller for all damages and other financial disadvantages incurred by the Seller due to the Buyer’s lack of or inadequate fulfillment of the financing obligation as well as other obligations pursuant to item 10. The burden of proof for the fulfillment of this obligation shall be on the Buyer.

11. Liability of the Seller

11.1 The Seller shall be liable for damages outside the scope of application of the Product Liability Act (Produkthaftungsgesetz) only to the extent that intent or gross negligence can be proven against him, within the scope of the statutory provisions. The Seller’s total liability in cases of gross negligence shall be limited to the net order value or to EUR 500,000, whichever is lower. Per claim, the Seller’s liability shall be limited to 25% of the net order value or EUR 125,000, whichever is lower.

11.2 Liability for slight negligence as well as compensation for consequential damages, pure financial losses, indirect damages, loss of production, financing costs, costs for replacement energy, loss of energy, data or information, loss of profit, savings not achieved, loss of interest and damages from third party claims against the Buyer are excluded.

11.3 In the event of non-compliance with any conditions for assembly, commissioning and use (such as contained in operating instructions) or the official approval conditions, any compensation for damages shall be excluded.

11.4 If contractual penalties have been agreed upon, any further claims under the respective title shall be excluded.

11.5 The provisions of Clause 11 shall apply conclusively to all claims of Buyer against Seller, irrespective of the legal basis and title, and shall also apply to all employees, subcontractors and sub-suppliers of the Seller.

12. Industrial Property Rights and Copyright

12.1 If goods are manufactured by the Seller on the basis of design data, drawings, models or other specifications by the Buyer, the Buyer shall indemnify and hold the Seller harmless against any infringement of industrial property rights.

12.2 Design documents such as plans, sketches and other technical documents, as well as samples, catalogs, brochures, illustrations and the like, shall always remain the intellectual property of the Seller and shall be subject to the relevant statutory provisions regarding reproduction, imitation, competition, etc. Point 2.2 shall also apply to execution documents.

13. Compliance with export regulations

13.1 The Buyer shall comply with the applicable provisions of national and international (re-)export regulations when transferring the goods delivered by the Seller and the related documentation to third parties, irrespective of the manner in which they are made available or the services provided by the Seller, including technical support of any kind. In any case, when passing on the goods or services to third parties, he shall comply with the (re-)export regulations of the Seller’s country of domicile, the European Union and the United States of America.

13.2 If required for export control inspections, the Buyer shall, upon request, immediately provide the Seller with all necessary information, including information on the final recipient, final destination and intended use of the goods or services.

14. Severability

If individual provisions of the contract or of these provisions should be invalid, the validity of the remaining provisions shall not be affected. The invalid provision shall be replaced by a valid provision which comes as close as possible to the intended objective.

15. Force majeure (Vis maior)

15.1 It shall not be considered a breach of contract if the contracting parties cannot fulfill their conditions specified in the contract for reasons not attributable to them (vis maior). Vis maior is considered to be the unpredictable conditions which cannot be overcome with human contribution (e.g. war, nationwide strike, earthquake, flood, fire disaster, terrorist attack, etc.) which are independent of the will of the contracting parties and directly prevent the contracting parties from fulfilling their obligations. Upon the request of the other party, the affected party is obliged to submit the confirmation issued by the authority or the organization representing the interests of the given country.

In the absence of a written agreement of the contracting parties, the contractual terms shall be extended proportionally to the duration of the vis maior events. If the vis maior event lasts longer than 30 days, the contracting parties are entitled to terminate the contract in writing without adverse legal consequences, even in cases when the contracting parties would not be entitled to do so under the present contract.

Before terminating the contract, the contracting parties are obliged to negotiate possible amendments to the contract. If the negotiations do not bring any result within 10 days, the contract is terminated.

16. Place of jurisdiction and law

The place of jurisdiction is agreed to be the registered office of CABLEDOC. Thus, the competent court for both contracting parties is the appropriate court for commercial matters in Vienna, Austria. The contract shall be governed by Austrian law, excluding the conflict of laws rules. The application of the UNCITRAL Convention on Contracts for the International Sale of Goods is excluded.

17. Reservation clause

The performance of the contract on the part of the Seller is subject to the proviso that no obstacles due to national or international (re-)export regulations, in particular no embargos and/or other sanctions, prevent the performance.

Issue according to the valid version on  http://cabledoc.com/general-terms/ ‎

18. Appendix

We will largely adapt our work according to your wishes and construction requirements, but we would like to point out that our calculation is based on a speedy execution of the work during normal working hours. If overtime is required for reasons beyond our control, we will charge the collectively agreed surcharges. Our offer is based on continuous assembly. Any standing times or separate journeys that are not our fault will be invoiced separately.

If, after conclusion of the contract, conditions are imposed or additional deliveries/services are requested which go beyond the scope of the order and/or require additional expenditure, we reserve the right to include these in subsequent quotations or to invoice them separately according to actual expenditure at our standard rates of € 85.00/hour plus costs for travel to and from the site.

When calculating our offer prices, we assume that the offered scope of supply and services will be awarded in total. Should mass reductions occur and/or individual items or titles be omitted, we reserve the right to recalculate our prices taking into account the changed calculation basis and, if necessary, to re-offer the reduced scope of services.

 

We will be happy to answer any queries you may have.