GENERAL SALES TERMS AND CONDITIONS OF MECHATRONIC SYSTEM ENGINEERS FOR TRADERS
Last updated 6/08
- Scope
1.1 These terms and conditions apply between us (MTA Systems GmbH) and physical and legal persons (hereafter: customer) to this legal transaction and also to all future transactions, even if they are not expressly referred to in an individual case, in particular for future transactions or subsequent transactions.
1.2 The current version of our general terms and conditions at the time the contract is concluded, is available on our homepage (http://www.mta-innovation.com) shall be applicable.
1.3 We contract exclusively on the basis of our general terms and conditions.
1.4 The terms and condition of a customer, or amendments or modifications to our terms and conditions shall require our express written agreement in order to be valid.
1.5 The terms and conditions of the customer are not acknowledged, even if we don’t expressly object to them after receipt.
- Quotes, conclusion of contracts
2.1 Our quotes are non-binding.
2.2 Acceptances, assurances and guarantees on our part, or agreements deviating from these terms and conditions in relation to the conclusion of the contract shall only be binding with our written confirmation.
2.3 The customer is to advise us of information appearing in catalogues, price lists, leaflets, advertisements on exhibition stands, circulars, advertising material or other material (informational material) about our products and services, for which we are not responsible, if the customer has based its purchase decision on this. We can then take a position on its accuracy. Should the Customer violate this obligation, information of this kind shall not be binding, insofar as this is not expressly declared in writing to form a part of the contract.
2.4 Cost estimates are non-binding.
2.5 Cost estimates are available for a fee.
- Prices
3.1 As a matter of principle, quotations are not to be understood as flat rate fees.
3.2 For services ordered by the customer, which were not covered in the original contract, there shall be a claim to appropriate remuneration in the absence of an agreement for remuneration.
3.3 Quotations do not include any applicable statutory sales tax and are ex stock. The cost of packaging, transport, loading and shipping, as well as customs and insurance shall be borne by the customer. We shall only be obliged to take back packaging if expressly agreed.
3.4 The customer shall arrange for the professional and environmentally sound disposal of used material. If we are separately commissioned to do so, the customer shall additionally pay appropriate remuneration to the extent agreed for this, in the absence of a remuneration agreement.
3.5 We shall be entitled of our own accord and at the request of the customer to adjust the contractually agreed charges if changes amounting to at least 3 % with regard to
a) labour costs by law, regulation, collective agreement, works agreement or
b) other cost factors necessary for the provision of services such as procurement costs for the materials to be used due to recommendations materials, exchange rates, etc. have occurred since the conclusion of the contract. The adjustment shall be made to the extent that the actual manufacturing costs change at the time the contract is concluded compared with those at the time the services are actually rendered, unless we are in default.
3.6 The remuneration for continuing obligations is agreed as secured in accordance with the 2005 CPI and is thus adjusted. The starting point is the month in which the contract was concluded.
3.7 Costs for travel, daily and overnight expenses will be charged separately. Travel time is regarded as working time.
- Goods provided
4.1 If equipment or other materials are provided by the customer, we shall be entitled to charge the customer 30% of the value of the equipment or material provided as a handling surcharge.
4.2 Such equipment and other materials provided by the customer are not subject to warranty.
- Payment
5.1 One third of the fee is due upon conclusion of the contract, one third upon commencement of the service and the remainder upon completion of the service.
5.2 The right to deduct a discount requires an express written agreement.
5.3 Payment commitments made by the customer on transfer receipts are not binding for us.
5.4 If the customer is in default of payment within the scope of other contractual relationships existing with us, we shall be entitled to suspend performance of our obligations under this contract until the customer has fulfilled its obligations.
5.5 We shall then also be entitled to demand payment of all claims for services already rendered from the current business relationship with the customer.
5.6 If the payment deadline is exceeded, even if only in respect of an individual partial performance, any remuneration granted (discounts, reductions, etc.) shall be forfeited and added to the invoice.
5.7 In the event of default in payment, the customer undertakes to reimburse us for the costs necessary and appropriate to the purpose (reminder costs, collection fees, lawyer’s fees, etc.).
5.8 The customer shall only be entitled to offset if counterclaims have been established by a court or acknowledged by us.
- Credit check
6.1 The customer gives its express consent that its data may be transmitted exclusively for the purpose of creditor protection to the state privileged creditor protection associations AKV EUROPA Alpenländischer Kreditorenverband für Kreditschutz und Betriebswirtschaft, Creditreform Wirtschaftsauskunftei Kubicki KG and Kreditschutzverband von 1870 (KSV).
- Customers’ duty of cooperation
7.1 Our obligation to perform services shall commence at the earliest as soon as
- all technical details have been clarified
- the customer has met the technical and legal requirements (which we will be happy to provide on request),
- we have received agreed down payments or security deposits, and
- the customer fulfils its contractual obligations for advance performance and cooperation, in particular also those mentioned in the following sub-items.
7.2 In the case of assembly work to be carried out by us, the customer is obliged to ensure that work can begin immediately on the arrival of our assembly personnel.
7.3 The customer must arrange for the necessary authorizations from third parties as well as notifications and authorizations from authorities at its own expense. These may be gladly requested from us.
7.4 The energy and water required for the performance including trial operation shall be provided by the customer at its expense.
7.5 The customer shall provide us with lockable rooms, which are not accessible to third parties free of charge, for the workers’ stay and for the storage of tools and materials for the duration of the performance of the service.
7.6 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, as described in the contract or in the information provided to the Customer prior to conclusion of the contract, or as the Customer should have known based on relevant specialist knowledge or experience.
7.7 The customer shall likewise be liable for ensuring that the technical systems, such as supply lines, cabling, networks and the like, are in a technically fault-free and operational condition and are compatible with the works or objects of purchase to be produced by us.
7.8 We are entitled, but not obliged, to inspect these facilities for a separate fee. 7.9. In particular, the customer is to provide the necessary information on the location of concealed electricity, gas and water pipes or similar installations, escape routes, other obstacles of a structural nature, possible sources of danger as well as the necessary structural information without being requested to do so and before the start of the installation work.
7.9 Details of the necessary information pertinent to a specific order can be requested from us.
7.10 The customer is solely responsible for the design and functionality of parts provided. There is no obligation to inspect the delivery item regarding any documents, information or instructions provided by the customer – over and above the appendage of a technical construction file and the certification of compliance with the Machinery Directive and any other applicable directives – and any liability on our part in this respect is excluded. The obligation to issue the certificate can be contractually bound to the customer who places the delivery item on the market.
7.11 The customer is not entitled to transfer claims and rights arising from this agreement without our written consent.
- Service execution
8.1 Minor changes to our performance which are reasonably justified and objectively justified for the customer shall be deemed to have been approved in advance.
8.2 If the order is modified or supplemented after it has been placed for any reason whatsoever, the delivery/performance period shall be extended by a reasonable period.
8.3 If the customer wishes a service to be performed within a shorter period after conclusion of the contract, this shall constitute a change to the contract. This may result in overtime being necessary and/or additional costs being incurred as a result of the hastening of material procurement, and the remuneration shall increase commensurately in relation to the necessary additional expenditure.
8.4 Objectively justified partial deliveries and services (e.g. plant size, construction progress, etc.) are permissible and may be invoiced separately.
8.5 If delivery on call has been agreed, the service/purchase item shall be deemed to have been called at the latest six months after the order was placed.
- Delivery and performance deadlines
9.1 Delivery/performance deadlines and dates are only binding for us if they have been specified in writing. Any departure from this form requirement must also be in writing.
9.2 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, deadlines and dates shall be postponed for the period during which the corresponding event continues. This does not affect the customer’s right to withdraw from the contract in the event of delays which make it unreasonable to be bound by the contract.
9.3 If the commencement of the performance or the performance itself is delayed or interrupted by circumstances attributable to the customer, in particular due to the breach of the duty of cooperation pursuant to Section 7, performance deadlines shall be extended accordingly, and completion dates postponed accordingly.
9.4 We shall be entitled to charge 8% of the invoice amount for each commenced month of delay in performance for the storage of materials, equipment and the like in our company that this necessitates, whereby this does not affect the customer’s obligation to make payment or his obligation to accept delivery.
9.5 In the event of withdrawal from the contract due to default, the customer shall set a grace period by registered letter including the threat of withdrawal.
- Transfer of risk and shipment
10.1 The risk shall pass to the customer as soon as the object of purchase / the work is ready for collection at the factory or warehouse, or as soon as we hand over this or the material and equipment to a carrier or hauler. Shipment, loading and unloading as well as transport shall always be at the risk of the customer.
10.2 The customer approves any appropriate shipping method. We undertake to take out transport insurance at the customer’s written request and expense.
10.3 We are entitled to charge the customer for packaging and shipping costs as well as the cash on delivery fee if the customer is in arrears with a payment from the existing business relationship with us or if a credit limit agreed with us is exceeded.
10.4 The customer is responsible for the safety of the materials and equipment delivered by us and stored or assembled at the place of performance. Losses and damage shall be borne by the customer.
- Default of acceptance
11.1 If the customer is in default of acceptance for more than 2 weeks (refusal of acceptance, delay with advance performance or otherwise, no call-off within a reasonable period of time in case of order on call-off), and if the customer has not remediated the circumstances attributable to him, which delay or prevent the performance of the service, despite setting a reasonable period of grace, we may otherwise dispose of the equipment and materials specified for the performance of the service in the case of a valid contract, provided that we procure these within a period of time appropriate to the respective circumstances in case of continuation of the performance of the service.
11.2 In the event of default of acceptance on the part of the customer, we shall also be entitled to store the goods with us if we insist on performance of the contract, for which we shall be entitled to a storage fee in accordance with item 9.4.
11.3 In the event of a justified withdrawal from the contract, we shall be entitled to demand a lump-sum compensation in the amount of 30% of the gross order value from the customer without proof of the actual damage.
11.4 The assertion of a higher damage amount is permissible.
12. Retention of title
12.1 The goods delivered, assembled or otherwise handed over by us shall remain our property until full payment has been made.
12.2 Resale is only permissible if we have been informed of this in good time beforehand, stating the name and exact address of the purchaser, and if we agree to the resale. In the event of our consent, the purchase price claim shall be considered as already having been assigned to us.
12.3 The customer must note this assignment in his books and on his invoices until full payment of the remuneration or purchase price has been made and must draw the attention of his debtors to this assignment. Upon request, the customer shall provide the Supplier with all documents and information required to assert the assigned claims and demands.
12.4 The customer gives his express consent for us to enter the location of the reserved goods in order to assert our reservation of title.
12.5 The customer shall bear the necessary and appropriate costs for the appropriate prosecution.
12.6 The assertion of the retention of title shall only constitute a withdrawal from the contract if this is expressly declared.
12.7 We may dispose of the returned goods subject to retention of title freely and in the best possible way.
12.8 Until full payment of all our claims, the service/purchase item may not be pledged, assigned as security or otherwise encumbered with rights of third parties. In case of seizure or other claims, the customer is obliged to point out our right of ownership and to inform us immediately.
- Third-party property rights
13.1 For delivery items which we manufacture according to customer documents (design data, drawings, models or other specifications, etc.), the customer shall exclusively warrant that the manufacture of these delivery items does not infringe the industrial property rights of third parties.
13.2 If third-party property rights are nevertheless asserted, we shall be entitled to discontinue the manufacture of the delivery items at the risk of the customer until the rights of third parties have been clarified, unless the claims are manifestly unjustified.
13.3 Likewise, we can claim the reimbursement of necessary and useful costs incurred by us from the customer.
13.4 We shall be entitled to demand reasonable advance payments for any litigation costs.
- 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 by our contribution shall remain our intellectual property.
14.2 Their use, in particular their transfer, duplication, publication and making them available including also only partial copying, as well as their imitation, treatment or utilization requires our express agreement.
14.3 Furthermore, the customer undertakes to maintain secrecy with respect to third parties with regard to the knowledge obtained from the business relationship.
- Guarantee
15.1 The warranty period for our services is one year from delivery.
15.2 Unless otherwise agreed (e.g. formal acceptance), the time of delivery is the time of completion, at the latest when the customer has taken over the service into his power of disposal or has refused to take it over without stating reasons. On the day on which the customer is notified of completion, the service shall be deemed to have been taken over by the customer’s power of disposal in the absence of a justified refusal to accept it.
15.3 Remedies of a defect alleged by the customer shall not constitute recognition of a defect.
15.4 The customer must always prove that the defect was already present at the time of delivery.
15.5 Notices of defects and complaints of any kind are to be made in writing immediately (at the latest after 2 working days) at the registered office of our company, with as exact a description of the defect as possible and an indication of the possible causes, otherwise the warranty claims will become void. The goods or works which are the subject of a complaint are to be handed over by the customer if this is feasible.
15.6 If claims for defects by the customer are unjustified, the customer shall be obliged to reimburse us for any expenses incurred in determining whether the defect is free of defects or in remedying the defect.
15.7 We are entitled to carry out or have carried out any inspection we deem necessary, even if this makes the goods or workpieces unusable. In the event that this examination reveals that we are not responsible for any defects, the customer shall bear the costs of this examination for a reasonable fee.
15.8 Transport and travel costs incurred in connection with the rectification of defects shall be borne by the customer. Upon our request, the customer shall provide the necessary manpower, energy and rooms free of charge and cooperate in accordance with Point 7.
15.9 The customer shall grant us at least two attempts to remedy the defect.
15.10 We can avert a conversion request by improvement or reasonable price reduction, provided that it is not a significant and irreparable defect.
15.11 If the subjects of the performance are manufactured based on information, drawings, plans, models or other specifications of the customer, we shall only warrant for the execution in accordance with the conditions.
15.12 The fact that the work is not fully suitable for the agreed use shall not constitute a defect if this is based exclusively on actual circumstances deviating from the information available to us at the time of performance because the customer does not fulfil his obligations to cooperate pursuant to Section 7.
15.13 Likewise, this shall not constitute a defect if the customer’s technical systems, such as supply lines, cabling, networks, etc., are not in a technically fault-free and operational condition or are not compatible with the delivered items.
- Liability
16.1 In the event of breach of contractual or pre-contractual obligations, in particular impossibility of performance, default, etc., we shall only be liable for financial losses in cases of intent or gross negligence.
16.2 Liability is limited to the maximum liability amount of any liability insurance taken out by us.
16.3 This limitation shall also apply to damage to an item which we have taken over for processing.
16.4 Claims for damages shall be asserted in court within six months, otherwise they shall expire.
16.5 The limitations or exclusions of liability also include claims against our employees, representatives and vicarious agents for damages caused to the customer by them without reference to a contract on their part with the customer.
16.6 Our liability is excluded for damage caused by improper handling or storage, overloading, non-compliance with operating and installation instructions, faulty assembly, commissioning, maintenance, servicing by the customer or third parties not authorized by us, or natural wear and tear, insofar as this event was causal for the damage. The exclusion of liability for omission of necessary maintenance also exists.
16.7 If and to the extent that the customer can claim insurance benefits for damages for which we are liable through our own damage insurance (e.g. liability insurance, accidental damage insurance, transport, fire, interruption of operations and others), or that concluded in favor of the customer, the customer undertakes to claim the insurance benefit and limits our liability towards the customer in this respect to the disadvantages incurred by the customer as a result of claiming on this insurance (e.g. higher insurance premium).
16.8 Those product characteristics shall be owed which, regarding the approval regulations, operating instructions and other product-related instructions and notices (in particular also inspection and maintenance) from us, third party manufacturers or importers can be expected by the customer taking into account his knowledge and experience. The customer as reseller shall take out sufficient insurance for product liability claims and shall indemnify us and hold us harmless regarding recourse claims.
- Severability clause
17.1 Should individually parts of these terms and conditions be ineffective, this shall not affect the validity of the remaining parts.
17.2 The parties hereby undertake to agree on a substitute provision – based on honest contracting parties – which comes as close as possible to the economic result of the invalid provision, taking into account the customary practice in the industry.
- General
18.1 Austrian law applies.
18.2 The UN Convention on Contracts for the International Sale of Goods is excluded.
18.3 The place of fulfilment is the registered office of the company.
18.4 The place of jurisdiction for all disputes arising from the contractual relationship or future contracts between the Supplier and the Customer shall be the locally competent court for the registered office of the Supplier.
18.5 The customer must immediately notify us in writing of any changes to its name, company, address, legal form or other relevant information.