General terms and conditions
Status: February 2023
§1 Validity of the terms and conditions
The Seller's deliveries, services and offers shall be made exclusively on the basis of these terms and conditions. They are recognised as binding upon conclusion of the contract, at the latest, however, upon acceptance of the goods or services. These terms and conditions shall also be the legal basis for all subsequent transactions, even if they are not separately agreed with the contracting party each time. Any conflicting terms and conditions of the buyer shall be deemed expressly excluded. Subsidiary agreements, amendments or additions to the contract shall only be effective if they have been confirmed in writing. Counter-confirmations of the buyer with reference to his terms and conditions of business or purchase are hereby contradicted. In the performance of deliveries and services, the state of the art as well as recognised professional and ethical rules shall be observed.
§2 Conclusion of contract
Offers contained in brochures, advertisements, etc. - also with regard to price quotations - are subject to change and non-binding. The designations and specifications stipulated at the time of conclusion of the contract represent the technical status at that time. The Seller expressly reserves the right to make design changes for deliveries under this contract, provided that these changes are not of a fundamental nature and the contractual purpose is not significantly restricted. The scope of services shall be based on the order confirmation or a written service description confirmed by 3D-eHEAT and the contractual partner. The service description has to be checked for correctness and completeness by the contractual partner and has to be marked with his approval. Change requests occurring later may lead to a separate deadline and price agreements.
3D-eHEAT shall endeavour to comply with the agreed dates of performance as closely as possible to the extent possible. Services can be rendered by employees of 3D-eHEAT itself or by independent third parties (assembly partners) on behalf of 3D-eHEAT at the discretion of 3D-eHEAT. Insofar as the delivery and service are divisible, they may also be rendered by 3D-eHEAT in parts. Unless otherwise agreed, the transport of deliveries shall be at the risk and for the account of the contracting partner. The contractual partner shall ensure that 3D-eHEAT receives all documents necessary for the fulfilment and execution of the contract in due time and that 3D-eHEAT is informed of all processes and circumstances which are of importance for the execution of the order. This also applies to all documents, processes and circumstances which only become known during the activity of 3D-eHEAT. Likewise, the contractual partner shall create the organisational framework conditions for the provision of services. If the execution of the order is prevented by the contracting party after signing the contract, 3D-eHEAT shall be entitled to insist on performance or to claim damages in the amount of the total remuneration. If the execution of the order is prevented by circumstances which constitute an important reason on the part of 3D-eHEAT, 3D-eHEAT shall only be entitled to the part of the remuneration corresponding to the services rendered so far. This shall apply in particular if the previous services are usable for the contractual partner despite termination.
§4 Terms of payment and default
Unless otherwise agreed in our offer or our order confirmation, 50% of the order sum is due for payment when the order is placed, 40% on the agreed installation date or after completion of the work, and 10% after acceptance for proper use. Reference is made to the right to security pursuant to § 1170b ABGB. For order sums from € 10.000,00 (incl. VAT) 3D-eHEAT can request a payment guarantee from your bank within two weeks after placing the order (before ordering) in the amount of the corresponding order sum (incl. VAT). Payments must be made in accordance with the order confirmation. Unauthorised payments shall first be credited against reminder charges, then against interest and then against the oldest outstanding debt. Interest on arrears shall be 12% p.a.. If the guarantee is not handed over in time, the further delivery, assembly and completion dates shall be postponed accordingly. In the case of purely commercial goods, a payment period of 10 working days from the date of invoice shall apply without deductions. The contractual partner is not entitled to withhold payments due to incomplete total delivery, guarantee or warranty claims or complaints. A set-off of agreed payments with counterclaims by the contracting party is excluded, unless the counterclaim has been determined by a court of law. The contractual partner acknowledges 3D-eHEAT's right that claims can be ceded or sold in principle. The compliance with the agreed payment dates is an essential condition for the execution of the delivery or service by 3D-eHEAT. In case of non-compliance with the agreed terms of payment 3D-eHEAT is entitled to stop any activity and delivery and to withdraw from the contract. The previous services of 3D-eHEAT shall be settled and the contractual partner shall bear these costs. Further claims of 3D-eHEAT for complete performance and payment as well as compensation for damages shall remain reserved by 3D-eHEAT. In case of orders comprising several units 3D-eHEAT shall be entitled to invoice after delivery of each individual unit or service. For partial invoices the terms of payment stipulated for the total order shall apply equally.
§5 Prices and offers
The prices quoted are net prices (without VAT). We are entitled to pass on the increase to you to a reasonable extent due to increased wage or ancillary wage costs, as well as increased material costs (also due to currency fluctuations when importing raw materials or components from suppliers), if our EK prices increase between the order and the start of assembly or delivery, e.g. if raw material prices have increased. Our information is a non-binding invitation to place an order. A contract is therefore only concluded by the company's drawing of an order confirmation or a cost estimate. A mere confirmation of receipt after receipt of an order is not yet deemed to be an order confirmation or cost estimate (see §6).
§6 Order confirmations
After acceptance of the offer made by us, you will receive an order confirmation from us, which must be returned to us within 8 working days from the date of issue, manufactured by the company. If the order confirmation is returned to us later than 8 working days, the delivery, assembly and completion dates shall be extended accordingly. If our order confirmation deviates from the original offer and you do not object in writing within 8 days, these deviations shall be deemed to have been approved. An offer countersigned by you shall be deemed to be an order and order confirmation.
§7 Delivery dates, assembly dates, completion dates
The final dates and deadlines, insofar as they are not already included in the order confirmation, shall be communicated to you in good time and shall be observed by both contracting parties. Agreed deadlines shall not commence until the concrete execution of the subject matter of the contract has been agreed with us in all details. Subsequent changes to the subject matter of the contract, insofar as there is no mere restriction of our scope of performance, shall interrupt agreed deadlines, which shall start to run again and agreed deadlines shall be postponed accordingly. We reserve the right to make partial deliveries and to invoice these separately and immediately. If we are in default with the delivery of the subject matter of the contract, you may set a grace period of at least 4 weeks in writing with the threat of withdrawal. If no delivery is made within this grace period, you are entitled to withdraw from the contract in writing. You shall only be entitled to other claims, in particular for damages, if the delay in delivery or the non-delivery is due to intent or gross negligence on our part. If the subject matter of the contract is stored for you after the agreed delivery date for reasons for which we are not responsible, you shall bear the performance and price risk for the period of storage. In this case, we are entitled to store the subject matter of the contract for you with a warehouse keeper or, if storage takes place with us, to charge costs as a warehouse keeper would normally charge. Delivery dates are completion dates in the case of assembly work. In the case of installation work, you must comply with the installation start date, in particular ensure accessibility to the object, take into account corresponding preliminary work such as drying times and provide the necessary energy such as electricity, water, etc. free of charge and enable installation in accordance with the applicable employee protection regulations (WC, lighting, heating, etc.), and comply with the provisions of the Construction Work Coordination Act, otherwise we are entitled to charge storage costs. The working and surface temperature must not fall below 10°C at the start of assembly and during assembly. If this is not the case at the start of installation and by the end of installation, proper execution of the heating coating is not possible. If the delivery, assembly or completion dates are delayed despite our readiness to perform due to circumstances within your sphere of influence (e.g. delay of preparatory work, no accessibility to the object, surface temperature, etc.), all resulting disadvantages and damages (e.g. storage fees of suppliers, price increases) shall be borne by you. Delays in delivery and consequential damages due to postponement of other orders will be charged to the party responsible. In this case, agreed payment dates are to be adhered to irrespective of the delay in delivery, assembly or completion dates.
Cancellation of an order requires our prior written consent. § Section 1168 of the Austrian Civil Code (ABGB) is waived by mutual agreement. In the event of cancellation, you shall pay a cancellation fee amounting to 25% of the order sum. However, we reserve the right to claim separately any disadvantage incurred by us which is not covered by the cancellation fee (in particular the fee exceeding the cancellation fee). We reserve the right to withdraw from the contract within 8 working days from receipt of a signed order confirmation or a countersigned cost estimate without giving reasons.
§9 Acceptance, notice of defects
Deliveries and services of any kind, in particular also data and equipment provided, shall be inspected by the contracting party without delay and notifications of defects shall be submitted in writing without delay. If the contracting party fails to inspect deliveries and services or to give notice of defects, it shall waive any claims for damages it may have on account of defects. Individually produced systems require acceptance by the client at the latest 4 weeks after delivery. If the client allows the period of 4 weeks to elapse without acceptance, the delivered system shall be deemed to have been accepted as free of defects on the end date of the said period. If the system is used in operation by the client, the system shall in any case be deemed to have been accepted free of defects. Notices of defects shall only be valid if they concern reproducible defects and if they are made in writing within 2 weeks after delivery or performance after acceptance.
The contractual partner's warranty claims shall be limited to improvement, price reduction as well as supplementing what is missing. The contractual partner shall not be entitled to refuse acceptance, deliveries and services due to insignificant defects. Any warranty shall lapse for modifications to the system which are subsequently changed by third parties. Delays in delivery and performance as well as cost increases caused by incorrect, incomplete or subsequently changed equipment or goods shall not be represented by 3D-eHEAT and cannot lead to a default of 3D-eHEAT. Resulting additional costs shall be borne by the contractual partner. In case of unjustified assertion of warranty claims 3D-eHEAT shall be entitled to charge the costs incurred to the contractual partner at the respective valid cost rates.
We shall only be liable to you for intent and gross negligence. The services rendered by 3D-eHEAT (in particular planning services) are based on documents and information provided by the client. 3D-eHEAT does not assume any liability for errors, misunderstandings and changes which are due to wrong, self-initiated or incomplete information of the client. Possible civil proceedings according to the Federal Disability Equality Act (including arbitration proceedings) cannot be excluded by the consultation and planning due to the legal design of the Federal Disability Equality Act. Any liability of 3D-eHEAT for claims made by affected persons against the client is excluded. A liability of 3D-eHEAT for consequential harm caused by a defect is therefore expressly excluded.
§11 Retention of title and right of return
Deliveries and services shall remain the property of 3D-eHEAT until full payment has been made. Only with payment of the full amount the ownership of the object is transferred to the contractual partner without further ado. The retention of title refers to those amounts of money which are received by the client due to the sale of the deliveries and services provided by 3D-eHEAT. The client is obliged to store these amounts of money separately. 3D-eHEAT shall be informed immediately of any measures which could endanger the retention of title. The client shall bear all costs of an intervention procedure and all defence measures which 3D-eHEAT deems necessary. Should you resell the deliveries before full payment of the purchase price, you already now assign to us in advance all claims, if any, which have arisen to you from the resale of the deliveries. We reserve the right to reclaim (remove) the goods delivered by us while maintaining the contract if full payment is not made on the due date despite a reminder.
§12 Written form, non-binding nature of oral promises
Any amendments to the contract must be in writing. Any other promises or agreements must also be made in writing. Oral agreements are therefore non-binding for us.
§13 Loyalty and duty of confidentiality
The contracting parties undertake to be loyal to each other. They further undertake to keep knowledge of any kind about the contractual partner secret and not to disclose any data or documents of any kind to unauthorised third parties. This obligation shall also apply to third parties involved in the performance of mutual services.
§14 Copyright, intellectual property
All planning and agency services of 3D-eHEAT, including those from presentations (e.g. suggestions, ideas, sketches, samples, preliminary drafts, final drawings, concepts, technical documents, catalogues, illustrations and the like) shall remain the (intellectual) property of 3D-eHEAT as well as the individual workpieces and design originals and may be reclaimed at any time - in particular upon termination of the contractual relationship. By paying the fee, the client acquires the right to use these services for the contractually agreed purpose. Any further exploitation, duplication, distribution, processing, modification, publication and/or presentation of our services by the client or by third parties commissioned by the client may only take place with our prior written consent. The acquisition of rights of use and exploitation of our services for the agreed purpose shall in any case require full payment of the fees invoiced by us. If the potential customer is of the opinion that ideas, concepts or the like were presented to him by 3D-eHEAT which already existed prior to the corresponding presentation to the potential customer, he shall notify 3D-eHEAT of this within 8 days after the day of the presentation by e-mail, citing evidence which permits the chronological allocation of the emergence or development of the concept in question. If this is not done, it shall be deemed agreed that 3D-eHEAT has presented a completely new idea or concept to the potential customer.
§15 General Terms and Conditions
Austrian law shall be exclusively applicable. The court with subject-matter jurisdiction in A-6800 Feldkirch is agreed as the place of jurisdiction. The applicability of the UN Convention on Contracts for the International Sale of Goods to contracts is expressly excluded. The place of performance for all services is agreed to be the location of 3D-eHEAT in A-6922 Wolfurt, unless otherwise stated in the order confirmation. Should individual provisions of a contract or these General Terms and Conditions be or become invalid, this shall not affect the remaining content of this contract. There shall be no supplements or collateral agreements to this contract. They, as well as the waiver of this written form clause, are only permissible and effective in written form. Any terms and conditions other than these General Terms and Conditions shall not be accepted by us and shall therefore not form part of the contract.
§16 Customer's duty to cooperate
The customer shall ensure that in the case of all services and preliminary services which are made available to 3D-eHEAT by the customer for the fulfilment of the order (such as documents, photos, logos, etc.), the legal relationships with regard to these services and preliminary services are such that 3D-eHEAT is not responsible for any encroachment on the intellectual property rights, ancillary copyrights, know-how and/or processing rights of a third party in the fulfilment of the contractual obligations. The Customer shall therefore be obliged to carry out a comprehensive right of use in advance with regard to his services and preliminary services and guarantees that his services and preliminary services then provided to 3D-eHEAT are free of third party rights or that the Customer has been granted corresponding rights of use to the rights of third parties. In this context, the customer shall fully indemnify and hold 3D-eHEAT harmless from and against any and all claims under intellectual property law and similar claims of third parties and shall compensate 3D-eHEAT for any and all disadvantages, damages and costs (in particular also attorney's fees) arising from such claims by third parties irrespective of fault. Correspondingly, the customer undertakes to inform 3D-eHEAT immediately if such claims are raised by third parties.
§17 Data protection
Personal data of the customer (if a natural person) or personal data provided by the customer shall be processed exclusively on the basis of the statutory provisions (DSGVO, DSG, TKG). For the purpose of processing the contract, the following personal data of the customer will be processed: Name/company, business address, telephone number, fax number, e-mail address, company register number, bank details, credit card details, UID number. The processing of this personal data is necessary for the performance of the contract or for the implementation of pre-contractual measures (Art 6 para 1 lit b DSGVO) and their provision is a prerequisite for the conclusion of the contract. Without this data, 3D-eHEAT cannot conclude the contract. This data is only forwarded to third parties if this is necessary for the purpose of processing the contract or for billing purposes (e.g. to credit institutions). After termination of the contract with the customer, the data from the contractual relationship will be deleted if they are no longer necessary for the fulfilment of the purpose pursued with the processing and for the defence of possible legal claims of the customer and provided that the deletion does not conflict with statutory retention periods. 3D-eHEAT also has a legitimate interest in referring to the existing or former business relationship with the customer on its own advertising media and in particular on its website with the name and company logo for the purpose of self-promotion (reference; processing on the basis of Art 6 para 1 lit f DSGVO). The customer is entitled to the rights of information, correction, deletion, restriction, data portability, revocation and objection. If the customer believes that the processing of his/her data violates data protection law or that data protection claims have been violated in any other way, a complaint can be lodged with the supervisory authority. In Austria, this is the data protection authority.
§18 Final provision
Additions or amendments to this agreement must be made in writing. This shall also apply to any deviation from the written form requirement. Should any term or provision of this contract be declared invalid, ineffective or unenforceable, this shall not affect the validity of the other provisions of these GTC. In order to avoid the impracticability and invalidity, the impracticable or invalid provision shall be interpreted in a corrective manner so that the original intention of the parties is preserved as far as possible. The same shall apply in the event of a loophole. The contracting parties agree that Austrian law shall apply with the exception of the reference norms of international private law and the UN Convention on Contracts for the International Sale of Goods. The place of performance and jurisdiction shall be the competent court of Feldkirch.