ECOTHERM Austria GmbH
General Terms and Conditions
Our General Terms and Conditions of Business below apply to all deliveries and services. Verbal agreements shall only apply following written confirmation by the Recipient. Conditions of sale that contradict our „General Terms and Conditions of Purchase shall be ineffective unless they have been expressly approved by the Recipient.
Your quotations shall be without obligation and free of charge. The order shall only be deemed to have been placed on dispatch of our written order confirmation. Quotations or estimates addressed to us shall be binding and free of charge in the absence of express agreement to the contrary. In the event of a quotation made to us, the Tenderer is committed there to for 60 days from receipt of this quotation by us.
- Quotation validity and delivery deadlines
The advised delivery deadlines shall be binding upon the Supplier; the delivery deadline shall run from the date of order. Only deliveries without reservation of title are accepted. Force majeure, interruptions to operations of any kind and whatever the cause, and other unforeseen events, which significantly complicate acceptance for the Recipient, shall give the Recipient the right to extend the acceptance deadlines without the Supplier being due a claim to compensation and without the possibility of earmarked quantities being invoiced prior to acceptance.
- Protection of plans and documentation, secrecy
Plans, sketches, cost estimates and other documentation such as brochures, catalogues, samples, presentations and similar material shall remain our intellectual property. Any improper use, especially transmission or internal use, is expressly prohibited.
- Transfer of risk
In the absence of a written agreement to the contrary, delivery of the goods shall take place at the supplier‘s cost and risk. The goods are deemed to be sold free of charge to address of buyer. Transfer of risk shall be established when the goods arrive at the company or the agreed delivery destination.
In the absence of other express agreements, prices stated to us shall be understood to be inclusive of all taxes and incidental expenses, including carriage costs. Agreed prices or those based on the contract are deemed to be fixed prices. We do not accept escalation clauses and such like unless they have been specially negotiated.
- Payment terms (maturity, part payment, discount)
In the absence of express agreement to the contrary, our payment term is 45 days from receipt of invoice. In the case of payment within 14 days from receipt of invoice we are due deduction of a discount to the value of 3 pct.
- Cancellation fees
The Purchaser shall have the right to cancel the contract, without stating reasons, within 14 days of placing the order, on payment of a cancellation fee of no more than 3 pct. of the purchase price.
In accordance with the following provisions, the Supplier shall be obliged to remedy each defect impairing serviceability due to a construction fault, a fault in the material or execution fault. The Supplier shall also be liable for defects in expressly stipulated characteristics.
Exclusions of liability by our contracting parties, especially under the heading Warranty or Compensation, shall not be accepted unless these have been expressly negotiated with us in detail. In the event of defects emerging, we may choose replacement, repair or a reduction in price at our discretion, if there is no entitlement to redhibition and we exercise this right. If we insist on repair or replacement, we are entitled to withhold payment in full until complete fulfilment of the performance or delivery owed. Furthermore, deviations from the statutory provisions concerning compensation or warranty, such as changing allocation of the burden of proof, shortening deadlines and such like, require our express, case-by-case consent in writing to be effective.
By way of derogation from the statutory regulation, during the entire warranty period the burden of proof for freedom from defects shall remain with the Supplier.
The obligation to investigate defective deliveries of goods according to§377 Austrian Uniform Commercial Code (UGB) is expressly eliminated by agreement. In the event of any defects being discovered, we are entitled to a period of six weeks in which to complain about defects.
- Liability / Compensation
The Supplier, whether manufacturer, importer or dealer, has the status of producer. The Supplier shall in each case be liable within the terms of the Austrian Product Liability Act (Produkthaftungsgesetz) for any personal injury or damage to property which we incur as a consequence of the defectiveness of the goods supplied. It undertakes to hold us harmless and indemnify us. In addition to personal injury and damage to property, the Supplier shall also be liable for all indirect and direct consequential loss or damage which we incur as a result of processing or using the defective goods supplied. Exclusions of claims for compensation within the terms of §12 PLA shall not be accepted. We shall not accept exclusion of claims for compensation according to §933b ACC of 1797.
- Set off
We shall not acknowledge a contractual exclusion of set-off; instead, we are entitled to offset claims at any time, using all the claims due to us against the contracting party as the case arises.
- Covenant against assignment
Any claims that have arisen against us cannot be assigned for lack of express consent in writing.
- Bans on refusing performance and bans on retention
In the case of justified complaints, we are entitled to withhold the entire outstanding payment.
- Confidentiality Association
Confidential information, which particularly includes the business relationship, may not be passed on to any third parties without the prior written consent of ECOTHERM. In the event of an infringement, a contractual penalty in the value of an annual average order value for the last three financial years is been agreed and must be paid to ECOTHERM within 5 working days after written notification.
This penalty payment does not release the supplier that ECOTHERM is entitled for any other claims of damages.
- Formal requirements
All agreements, subsequent amendments, supplements, collateral agreements etc. must be affected in writing to be valid. This shall also include the original signature or secure electronic signature.
- Choice of law / Jurisdiction
The law of Austria alone shall apply. The court materially competent for Wels shall be the exclusive place of performance and jurisdiction. Applicability of the United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG) is excluded.
- Arbitration Agreement
All disputes arising out of this contract or related to its violation, termination or nullity shall be finally settled under the Rules of Arbitration and Conciliation of the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna (Vienna Rules) by one or more arbitrators appointed in accordance with these rules:
The number of arbitrators shall be one. The substantive law of Austria shall be applicable. The language to be used in the Arbitral proceedings shall be German. The applicability of the accelerated procedure is permitted.
Our “General Terms and Conditions of Business” below apply to all deliveries and services. Verbal agreements shall only apply following written confirmation by the Contractor (ECOTHERM). Conditions of purchase that contradict our “General Terms and Conditions of Business” shall be ineffective unless they have been expressly approved by the company.
All quotations from the Contractor shall be non-binding unless these expressly and simultaneously warrant an obligation and a specific period of commitment.
3. Conclusion of contract
The contract shall be deemed to have been concluded if the Customer has dispatched a written order confirmation following receipt of the order and this has not been demonstrably opposed by the Contractor within 10 days.
Amendments and supplements to the contract must be approved in writing in order to be valid.
If import and/or export licences or foreign exchange authorisations or similar authorisations are required for execution of the order, the contracting party responsible for procurement thereof must make all reasonable efforts to obtain the necessary documents.
4. Protection of plans and documentation, secrecy
Plans, sketches, cost estimates and other documentation such as
brochures, catalogues, samples, presentations and the like shall
remain our intellectual property. Any improper use, especially
imitation, reproduction, copying or transmission to a third party, is expressly prohibited. In addition, plans and documentation must not be used for any other purpose than they have been provided for.
5. Delivery / Delivery deadlines
Delivery deadlines shall apply with the date of written confirmation of order and/or fulfilment of all the technical, commercial and financial stipulations incumbent or all duties on the Customer by agreement. If a prepayment has been agreed, the delivery period begins not before the receipt of payment at Ecotherm. In the event of unforeseeable occurrences, such as natural disasters, official interruptions to operations, fire, no-fault delivery delays by suppliers etc., the delivery time shall be extended by the duration of the occurence without the Customer making demands, especially no claim for indemnity. Unless expressly agreed delivery dates are ex works. Ecotherm has fulfilled its obligation and the risk passes when the client is informed that the delivery item is at his disposal.
6. Retention of title
The goods supplied shall remain the Contractor‘s property until they have been paid for in full. In the event of pledging or other recourse, the Customer shall be bound to assert the Contractor‘s title and to inform the latter immediately. If the goods are sold on before payment, in the event of expiry the Customer shall assign the resulting debt to the Contractor.
All prices are in euro ex works excluding value added tax, unless otherwise expressly agreed. The place of payment is the seat of Ecotherm. Ecotherm is entitled to demand prepayment at any time without notice for any reason and can suspend its services until the payment receipt.
8. Rescission of contract
The Contractor is entitled to cancel the contract if, despite requests for payment and a 14 days period of grace being granted, the Customer defaults on its payment or does not fulfil, either in a timely manner or in full, other contractual obligations which it assumes. Institution of proceedings for insolvency or composition proceedings against the Customer‘s assets shall in any case constitute grounds for rescission.
9. Warranty / Guarantee
The Contractor shall guarantee the warranty for the goods supplied and services rendered within the scope of statutory provisions. The Contractor shall undertake to remedy each defect impairing serviceability due to a construction fault, a fault in the material or execution fault latest within three days in written form.
The warranty period is 12 months beginning with the date of delivery. Ecotherm is entitled to repair or replace defective parts at its discretion. The warranty obligation shall only apply on compliance with the operating instructions provided for and in the event of stipulated use of the goods supplied.
The Contractor shall only be liable to the Customer for personal injury and damage to property caused negligently within the scope of existing liability insurance. The Contractor‘s liability is excluded in the event of slight negligence.
Further claims, in particular any liability for consequential damages (e. g. breakdowns, production shutdown or failure, loss of profit, loss of interest), arrears, penalties or any other consequential damages are expressly excluded. Not to forfeit any claims for breach of contract in particular from poor service delivery, they have to be sent to Ecotherm within 10 days in written form and within two years filed in court.
Offsetting our claims with counterclaims of any kind whatsoever is
excluded. The client is not entitled to withhold payments because of alleged defects.
12. Formal requirements
All agreements, subsequent amendments, supplements, collateral agreements etc. must be effected in writing to be valid. Statements by fax or email satisfy the written form.
13. Jurisdiction / Legal basis
The local court competent for the Contractor‘s head office shall be the sole jurisdiction for all disputes arising indirectly or directly from the contract. Ecotherm is entitled to accept the general jurisdiction of the counterparty. The law of Austria alone shall apply. Applicability of the United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980, BGL 1988/96 is excluded as well as any reference norms (e. g. IPRG).