- These terms and conditions shall apply between us (Headplanet) and natural and legal persons (hereinafter referred to as the Customer) for the present company-related legal transaction as well as for all future transactions, even if no express reference is made to them in individual cases, in particular in the case of future supplementary or follow-up orders.
- The current version of our GTC, available on our homepage (www.headplanet.at) at the time the contract is concluded, shall apply and shall also be sent to the customer.
- We contract exclusively on the basis of our General Terms and Conditions.
- Terms and conditions of the customer or amendments or supplements to our GTC require our express written consent in order to be valid.
- The customer’s terms and conditions shall not be recognized even if we do not expressly object to them upon receipt.
2. offers, conclusion of contract
- Our offers are non-binding.
- Promises, assurances 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.
- The customer must provide us with any information about our products and services which is not attributable to us and which is stated in catalogs, price lists, brochures, advertisements on trade fair stands, circulars, advertising mailings or other media (information material), insofar as the customer bases his decision to place an order on such information. In this case, we can comment on their accuracy. If the customer breaches this obligation, such information shall be non-binding unless it has been expressly declared in writing to be part of the contract.
- Cost estimates are provided without guarantee and are subject to a charge.
- Prices are not to be understood as all-inclusive prices.
- For services ordered by the customer which are not covered by the original order, the customer shall be entitled to reasonable remuneration in the absence of an agreement on remuneration for work.
- Prices are quoted exclusive of the applicable statutory VAT and ex warehouse. Packaging, transportation, loading and shipping costs as well as customs duties and insurance shall be borne by the customer. We are only obliged to take back packaging if this has been expressly agreed.
- The customer must arrange for the proper and environmentally friendly disposal of old material. If we are commissioned to do this separately, the customer shall also pay for this to the extent agreed for this purpose, in the absence of an agreement on remuneration.
- We are entitled, as well as obliged at the customer’s request, to adjust the contractually agreed fees if changes of at least. 5 % with regard to (a) the wage 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, have occurred since the conclusion of the contract due to 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 production costs at the time of conclusion of the contract change compared to those at the time of actual performance, provided that we are not in default.
- The fee for continuing obligations is agreed as value-adjusted in accordance with the CPI 2010 and the fees are adjusted accordingly. The month in which the contract was concluded is taken as the starting point.
- Costs for travel, daily allowances and accommodation will be charged separately. Travel times count as working time.
4. goods provided
If equipment or other materials are provided by the customer, we shall be entitled to charge the customer 10% of the value of the equipment or material provided as a manipulation surcharge.
Such equipment and other materials provided by the customer are not covered by the warranty. The customer is responsible for the quality and operational readiness of supplies.
- One third of the fee is due upon conclusion of the contract, one third upon commencement of the service and the remainder after completion of the service.
- The entitlement to a discount deduction requires an express written agreement.
- Payment dedications made by the customer on transfer vouchers are not binding for us.
- If the customer is in default of payment under other contractual relationships with us, we shall be entitled to suspend the fulfillment of our obligations under this contract until the customer has fulfilled them.
- We shall then also be entitled to declare due all claims for services already rendered from the current business relationship with the customer.
- If the payment deadline is exceeded, even if only in respect of a single partial service, any benefits granted (discounts, rebates, etc.) shall be forfeited and added to the invoice.
- In the event of default of payment, the customer undertakes to reimburse us for the costs necessary and appropriate for the collection (reminder costs, collection fees, lawyer’s fees, etc.).
- In accordance with § 456 UGB, we are entitled to charge 9.2% points above the base interest rate in the event of culpable default of payment.
- We reserve the right to assert further claims for damages caused by delay.
- The customer shall only be entitled to set-off insofar as counterclaims have been established by a court or recognized by us.
- For reminders necessary and appropriate for collection, the customer undertakes to pay reminder fees of € 200 per reminder in the event of culpable default of payment, insofar as this is in reasonable proportion to the claim pursued.
6. credit check
- The customer declares his express consent that his data may be transmitted to the creditor protection associations Alpenländischer Kreditorenverband (AKV), Österreichischer Verband Creditreform (ÖVC), Insolvenzschutzverband für Arbeitnehmer oder Arbeitnehmerinnen (ISA) and Kreditschutzverband von 1870(KSV) exclusively for the purpose of creditor protection.
7 Obligations of the customer to cooperate
- Our obligation to perform the service shall commence at the earliest as soon as all technical details have been clarified, the customer has created the technical and legal prerequisites (which we will be happy to provide on request), we have received agreed advance payments or security deposits, and the customer has fulfilled his contractual advance performance and cooperation obligations, in particular those specified in the following subsections.
- In the case of assembly work to be carried out by us, the customer is obliged to ensure that work can begin immediately after the arrival of our assembly personnel.
- The customer shall arrange for the necessary authorizations of third parties as well as notifications and approvals by authorities at his own expense. These can be requested from us.
- The energy and water quantities required for the performance of the service, including trial operation, shall be provided by the customer at the customer’s expense.
- The customer must provide us with lockable rooms that are inaccessible to third parties free of charge for the duration of the performance of the service for the stay of the workers and for the storage of tools and materials.
- The customer shall be liable for ensuring that the necessary structural, technical and legal requirements for the work to be produced or the object of purchase are met, which were described in the contract or in information provided to the customer prior to conclusion of the contract or which the customer should have known on the basis of relevant specialist knowledge or experience.
- The customer shall also be liable for ensuring that the technical systems, such as supply lines, cabling, networks and the like, are in a technically flawless and operational condition and are compatible with the works or purchased items to be produced by us.
- We are entitled, but not obliged, to inspect these systems for a separate fee.
- In particular, the customer must provide the necessary information on the location of concealed electricity, gas and water pipes or similar installations, escape routes, other structural obstacles, possible sources of danger and the necessary structural data without being asked before the start of the installation work.
- Order-related details of the necessary information can be requested from us.
- The customer shall bear sole responsibility for the design and functionality of parts provided. There is no obligation to check any documents, information or instructions provided by the customer – beyond the creation of a technical construction dossier and the certification of compliance with the Machinery Directive and any other applicable directives – with regard to the delivery item, and our liability in this respect is excluded. The obligation to issue the certificate can be contractually transferred to the customer who places the delivery item on the market.
- The customer is not entitled to assign claims and rights arising from the contractual relationship without our written consent.
8. performance execution
- We are only obliged to take into account subsequent requests for changes and extensions by the customer if they are necessary for technical reasons in order to achieve the purpose of the contract.
- Minor changes to our performance that are reasonable and objectively justified for the customer shall be deemed to have been approved in advance.
- If, for whatever reason, the order is amended or supplemented after it has been placed, the delivery/performance period shall be extended by a reasonable period.
- If the customer requests performance within a shorter period of time after conclusion of the contract, this shall constitute an amendment to the contract. As a result, overtime may become necessary and/or additional costs may be incurred due to the acceleration of material procurement, and the remuneration shall increase appropriately in relation to the necessary additional work.
- SPECIFIC (e.g. PLANT SIZE, PROGRESS OF CONSTRUCTION, etc.) JUSTIFIED PARTIAL DELIVERIES AND SERVICES ARE PERMITTED AND MAY BE INVOICED.
- If delivery on call has been agreed, the object of performance/purchase shall be deemed to have been called six months after the order at the latest.
9. delivery and performance deadlines
- Delivery/service deadlines and dates are only binding for us if they have been specified in writing. Any deviation from this formal requirement must also be made in writing.
- Deadlines and dates shall be postponed in the event of force majeure, strikes, unforeseeable delays by our suppliers for which we are not responsible or other comparable events beyond our control for the period during which the relevant event continues. This shall not affect the customer’s right to withdraw from the contract in the event of delays that make it unreasonable to be bound by the contract.
- If the start of the performance of the service or the performance is delayed or interrupted due to circumstances attributable to the customer, in particular due to a breach of the duty to cooperate in accordance with point 7, the performance periods shall be extended accordingly and the completion dates postponed accordingly.
- We shall be entitled to charge 8% of the invoice amount for each commenced month of the delay in performance for the storage of materials and equipment and the like in our company required as a result, whereby the customer’s obligation to pay and its obligation to accept shall remain unaffected by this.
- In the event of withdrawal from the contract due to default, the customer must set a grace period by registered letter and at the same time threaten to withdraw from the contract.
10. transfer of risk
- THE RISK IS TRANSFERRED TO THE ENTREPRENEURIAL CUSTOMER AS SOON AS WE HOLD THE OBJECT OF PURCHASE, THE MATERIAL OR THE WORK READY FOR COLLECTION AT THE FACTORY OR WAREHOUSE, DELIVER IT OURSELVES OR HAND IT OVER TO A CARRIER.
- THE ENTREPRENEURIAL CUSTOMER WILL INSURE ITSELF AGAINST THIS RISK ACCORDINGLY. we undertake to take out transportation insurance at the customer’s expense at the customer’s written request. THE CUSTOMER AUTHORIZES ANY CUSTOMARY SHIPPING METHOD.
11. default of acceptance
- If the customer is in default of acceptance for more than 1 week (refusal of acceptance, default with advance performance or otherwise, no call-off within a reasonable period in the case of an order on call) and if the customer has not ensured the elimination of the circumstances attributable to him which delay or prevent the performance of the service despite setting a reasonable grace period, we may otherwise dispose of the equipment and materials specified for the performance of the service while the contract is still in force, provided that we procure these within a period appropriate to the respective circumstances if the performance of the service is continued.
- If the customer is in default of acceptance, we shall also be entitled to store the goods at our premises if we insist on fulfillment of the contract, for which we shall be charged a storage fee in accordance with clause 9.4 is entitled to.
- In the event of a justified withdrawal from the contract, we may demand lump-sum compensation from the customer in the amount of 20% of the gross order value without proof of actual damages.
- The assertion of higher damages is permissible.
12. reservation of title
- The goods delivered, assembled or otherwise handed over by us shall remain our property until full payment has been made.
- A resale is only permissible if we have been notified of this in good time in advance, stating the name and exact address of the buyer, and we agree to the sale. In the event of our consent, the purchase price claim shall already now be deemed assigned to us.
- The customer must note this assignment in his books and on his invoices until full payment of the remuneration or purchase price and inform his respective debtors of this. Upon request, he shall provide us with all documents and information required to assert the assigned claims and entitlements.
- If the customer is in default of payment, we are entitled to demand the return of the reserved goods after setting a reasonable grace period.
- The customer must inform us immediately before the opening of bankruptcy proceedings against his assets or the seizure of our reserved goods.
- The customer expressly agrees that we may enter the location of the goods subject to retention of title in order to assert our retention of title.
- The customer shall bear the necessary and reasonable costs for appropriate legal action.
- The assertion of the retention of title shall only constitute a withdrawal from the contract if this is expressly declared.
- We shall be entitled to sell the reserved goods taken back on the open market at the best possible price.
- Until all our claims have been paid in full, the object of performance/purchase may not be pledged, transferred by way of security or otherwise encumbered with third-party rights. In the event of seizure or other claims, the customer is obliged to point out our right of ownership and to inform us immediately.
13. third party property rights
- For delivery items which we manufacture according to customer documents (design data, drawings, models or other specifications, etc.), the customer alone shall assume the guarantee that the manufacture of these delivery items does not infringe the industrial property rights of third parties.
- If third-party industrial property rights are nevertheless asserted, we shall be entitled to cease production of the delivery items at the customer’s risk until the third-party rights have been clarified, unless the unjustified nature of the claims is obvious.
- The customer shall indemnify and hold us harmless in this respect.
- We are entitled to demand reasonable advance payments from business customers for any legal costs.
- We may also claim compensation from the customer for necessary and useful costs incurred by us.
- We are entitled to demand reasonable advance payments for any legal costs.
14 Our intellectual property
- Delivery items and related implementation documents, plans, sketches, cost estimates and other documents as well as software provided by us or created by our contribution shall remain our intellectual property.
- Their use, in particular their dissemination, reproduction, publication and making available, including copying even in part, as well as their imitation, processing or utilization, requires our express consent.
- Furthermore, the customer undertakes to maintain confidentiality vis-à-vis third parties with regard to the knowledge gained from the business relationship.
- The warranty period for our services is one year from delivery.
- Unless otherwise agreed (e.g. formal acceptance), the time of handover shall be the time of completion, at the latest when the customer has taken control of the service or has refused to accept it without giving reasons. On the day on which the customer is notified of completion, the service shall be deemed to have been transferred to the customer’s power of disposal in the absence of a justified refusal of acceptance.
- If a joint handover is planned and the customer fails to attend the handover date notified to him, the handover shall be deemed to have taken place on this date.
- Rectification of a defect alleged by the customer shall not constitute acknowledgement of a defect.
- The customer must always prove that the defect already existed at the time of handover.
- In order to remedy defects, the customer must make the system or equipment accessible to us without culpable delay and give us the opportunity to have it inspected by us or by experts appointed by us.
- Notices of defects and complaints of any kind must be made in writing immediately (within 2 working days at the latest) at the registered office of our company, describing the defect as precisely as possible and stating the possible causes, otherwise the warranty claims shall be forfeited. The goods or works complained about must be handed over by the customer if this is feasible.
- If the customer’s claims of defects are unjustified, the customer shall be obliged to reimburse us for any expenses incurred in establishing the absence of defects or rectifying defects.
- Any use or processing of the defective delivery item that threatens further damage or makes it difficult or impossible to remedy the cause must be discontinued by the customer immediately, unless this is unreasonable.
- We are entitled to carry out or have carried out any inspection we deem necessary, even if this renders the goods or workpieces unusable. In the event that this investigation reveals that we are not responsible for any errors, the customer shall bear the costs of this investigation for a reasonable fee.
- Any transportation and travel costs incurred in connection with the rectification of defects shall be borne by the customer. At our request, the customer shall provide the necessary manpower, energy and premises free of charge and shall cooperate in accordance with point 7.
- The customer shall grant us at least two attempts to remedy the defect.
- We can avert a request for conversion by improvement or reasonable price reduction, provided that the defect is not significant and irreparable.
- If the objects of performance are manufactured on the basis of information, drawings, plans, models or other specifications of the customer, we shall only provide a warranty for the execution in accordance with the conditions.
- The fact that the work is not fully suitable for the agreed use does not constitute a defect if this is based solely on deviating actual circumstances from the information available to us at the time of performance because the customer does not fulfill his obligations to cooperate in accordance with point 7.
- Similarly, this shall not constitute a defect if the customer’s technical equipment such as supply lines, cabling, networks, etc. are not in a technically perfect and operational condition or are not compatible with the delivered items.
- We shall only be liable for breach of contractual or pre-contractual obligations, in particular due to impossibility, delay, etc. in the case of financial losses in cases of intent or gross negligence due to technical peculiarities.
- Liability is limited to the maximum liability amount of any liability insurance taken out by us.
- This limitation shall also apply with regard to damage to an item that we have accepted for processing.
- Claims for damages must be asserted in court within two years, otherwise they shall lapse.
- The limitations or exclusions of liability also include claims against our employees, representatives and vicarious agents due to damage caused by them to the customer without reference to a contract between them and the customer.
- Our liability is excluded for damage caused by improper handling or storage, overloading, non-compliance with operating and installation instructions, incorrect assembly, commissioning, maintenance, servicing by the customer or third parties not authorized by us, or natural wear and tear, insofar as this event was the cause of the damage. There is also an exclusion of liability for failure to carry out necessary maintenance.
- If and to the extent that the customer can claim insurance benefits for damages for which we are liable through its own insurance or insurance taken out in its favor (e.g. liability insurance, comprehensive insurance, transport, fire, business interruption and others), the customer undertakes to claim the insurance benefit and our liability to the customer shall be limited to the disadvantages suffered by the customer as a result of claiming these insurance benefits.
insurance (e.g. higher insurance premium).
- Those product characteristics are owed which can be expected from us, third-party manufacturers or importers with regard to the approval regulations, operating instructions and other product-related instructions and information (in particular also inspection and maintenance), taking into account the customer’s knowledge and experience. The customer as reseller must take out adequate insurance for product liability claims and indemnify and hold us harmless with regard to recourse claims.
17. severability clause
- Should individual parts of these GTC be invalid, this shall not affect the validity of the remaining parts.
- The parties hereby undertake to agree on a replacement provision – based on the horizon of honest contracting parties – which comes closest to the economic result, taking into account the customary industry practice of the invalid provision.
- AUSTRIAN LAW APPLIES.
- THE RIGHT OF NON-PURCHASE IS EXCLUDED. THE PLACE OF PERFORMANCE IS THE REGISTERED OFFICE OF THE COMPANY (5111 BÜRMOOS/AUSTRIA).
- The place of jurisdiction for all disputes arising from the contractual relationship or future contracts between us and the customer shall be the court with local jurisdiction for our registered office.
- The customer must notify us immediately in writing of any changes to his name, company, address or other relevant information.