General Terms and Conditions of the CCE Group GmbH (Version November 2014)
(1) The following General Terms and Conditions (GTC) apply, together with any special provisions in the order issued, to all legal transactions with our contractual partners, if nothing to the contrary is regulated in any special terms and conditions. The version that is valid at the time the relevant agreement is concluded shall be authoritative.
(2) Insofar as any legal transactions are concluded with consumers in accordance with the Austrian Consumer Protection Act (KSchG), the mandatory provisions of this act take precedence over the following General Terms and Conditions.
(3) These General Terms and Conditions also apply to all additional orders and contractual extensions, even if in the individual case no explicit reference is made to these.
(4) Any differing, contradictory or supplementary General Terms and Conditions shall not become constituents of agreements, even in the event of knowledge thereof, unless their applicability is explicitly agreed in writing.
B. Order acceptance
We shall declare in writing the rejection of a written order within fourteen days of its submission, otherwise an order shall be deemed to be accepted on the date the order is issued. In the event of postal despatch, a rejection shall be deemed to be timely if it is posted within the deadline.
(1) Guideline prices that we give in advance of a project shall be issued in writing, are non-binding and can differ from the price specified in an actual tender. We give guideline prices in good faith and in the form of a so-called estimate. No guarantee shall be given for accuracy and completeness. We do not enter into any obligations at all through the submission of an estimate.
(2) All tenders shall only be issued in writing, are non-binding and do not involve any obligation to accept an order. An agreement shall only come into effect on the signature of the tender or receipt of the written order confirmation by post, fax or email. Any offer to contract made by our contractual partners requires an order confirmation from us. The tenderer is, however, bound to a period of at least eight days from the receipt of the tender. We reserve the right to make technical and other changes if these are reasonable for the contractual partner or are objectively justified.
(3) All costings (in particular income simulations and feasibility studies) provided to us and planning disclosures and requirements of the contractual partner, as well as drawings (in particular layout plans), illustrations, descriptions and sketches in all printed matter are not part of our non-binding tenders, are non-binding themselves and serve merely for information purposes. We cannot accept any guarantee, neither explicit nor implicit, for the accuracy, reliability and completeness of any information, formulae or results that are provided with such sample calculations or drawings. We cannot accept any liability for any loss or damage of any kind that could be attributed to any trust in these sample calculations or drawings.
(1) All the prices we specify are given ex VAT, unless an explicit statement to the contrary is given. The prices quoted apply until revocation. All price disclosures are non-binding. If there are any deviations from the specifications of the object of performance stated in the contractual basis due to a change in performance, we reserve the right to adjust the price. If any costs necessary for the discharge of performance change, such as those for materials, we are entitled to adjust the price accordingly. The costs of any conversion work, electrical work, additional expenses in the course of assembly etc. that are necessary for the discharge of performance, are not included in the tender and shall be charged separately.
(2) If, between the conclusion of an agreement and delivery, cost increases occur as a result of circumstances outside our control, such as recommendations of the Equal Representation Commission (Paritätische Kommission), increases in our cost prices, increases in producer and/or wholesale prices, as a result of wage cost increases due to law, official orders or collective bargaining agreements, as a result of an increase in or new introduction of taxes or as a result of indexation clauses, the prices under consideration shall increase accordingly (this does not apply to consumer transactions).
(3) We shall submit a partial invoice of 70% of the tender price on the delivery date unless different terms of payment are agreed in the order confirmation.
(4) We shall submit a final invoice after the commission of the subject of performance.
(5) Any subsequent amendments initiated by the contractual partner shall in the event of additional effort be paid for separately.
E. Terms of payment
(1) Payments shall be made in accordance with the terms of payment agreed in writing. If no differing terms of payment are agreed as per the written order confirmation, the amounts invoiced shall be due for payment within seven days from the invoice date net without deductions.
(2) Early payment discounts require a separate agreement. In the event of any (partial) payment arrears any possible early payment agreements shall lapse.
(3) Payments from our contractual partners shall only be deemed to have been made from the time of receipt in our business account.
(4) Any retention of payments or offsetting with any counterclaims by our contractual partners is excluded, for any reason whatever. Any retention of the purchase price in the event of justified claims to improvement is only permissible within the scope of the expense necessary for the improvement. This does not apply to consumer transactions.
(5) In the event of payment arrears, we are entitled, regardless of our other rights, to take back any merchandise, appliances and similar items subject to our retention of title – without this equating to a withdrawal from the agreement.
(6) In the event of payment arrears, we are entitled to demand the restitution of any losses actually incurred and legal interest on arrears, however, at least 6% p.a.
(7) In the event of arrears, the contracting partner in default shall recompense the dunning and collection expenses we incur insofar as these are necessary to take the appropriate legal action.
F. Retention of title
(1) We deliver all merchandise subject to retention of title and this merchandise remains our property until payment in full.
(2) The contractual partner is obliged to treat the merchandise carefully during the period retention of title applies. The contractual partner shall regularly carry out any maintenance and servicing work that may be required at its own cost. Retention of title shall only be asserted by a withdrawal from the agreement if this is explicitly declared. In the event of any return of merchandise we are entitled to invoice any transport and handling expenses incurred.
(3) In the event of third-party accesses to reserved goods – through execution proceedings in particular – the contractual partner is obliged to draw attention to our property and to inform us without delay. The same applies in the event of any damage to or destruction of the subject of performance.
(4) Until the settlement of the outstanding purchase price in full any disposal, pledging, chattel mortgaging, letting or any other transfer of the subject of performance we deliver to the contractual partner is not permissible without our written agreement.
(5) In the event of any further disposal of the subject of performance that is subject to reservation of title by the contractual partner the reserved property extends to the future revenue or the purchase price receivable from this transaction. In the event of such a further disposal the contractual partner is obliged to report this immediately and to deposit the revenue separately.
(6) The contractual partner shall bear the full risk for the reserved merchandise, in particular for the risk of destruction, loss or deterioration, as well as in the event of any breach of the aforementioned obligations.
(7) In the event of conduct in breach of contract by the contractual partner, in particular in the event of payment arrears, we are entitled to withdraw from the agreement and to demand the surrender of the subject of performance. In addition, in the event of a breach of one of the aforementioned obligations we are entitled to withdraw from the agreement and to demand the surrender of the subject of performance if adherence to the agreement is no longer reasonable.
G. Performance, Transfer of risks
(1) The scope of performance is determined by the scope of the order confirmed by the contractual partner. An accepted order shall be deemed to have been fulfilled on the provision of performance if no other form of fulfilment has been agreed in writing.
(2) The place of performance for every performance and payment is our company registered office, including if the handover takes place at another location in accordance with the agreement. Risks shall transfer to the contractual partner on delivery at the latest unless we culpably caused any damage. The risk for consumer transactions transfers on the handover of the subject of performance.
(3) We are entitled to commission subcontractors to fulfil performance (in particular for assembly and electrical work). The contractual partner gives their agreement to this.
(4) The delivery deadlines shall be agreed individually according to the order or order size. The agreed delivery deadline begins at the earliest from the point in time at which all technical, commercial and financial matters have been mutually set. The delivery object shall be delivered directly to the contractual partner by the manufacturer or supplier.
(5) Compliance with the agreed delivery deadline applies subject to unforeseeable circumstances or circumstances outside the control of the Parties, for examples all cases of force majeure, acts of war, official interventions and prohibitions, transport and customs delays, transport damage or energy shortages. Such circumstances then also justify an extension of the delivery deadline if these circumstances occur at a manufacturer or supplier.
(6) We reserve the right to amend products, even if these have been set and agreed in order confirmations or invoices, to alternative products at any time if these alternative products are of similar or equal quality and the contractual partner will not suffer any appreciable disadvantage.
(7) We are entitled to carry out and settle partial or full deliveries. This does not require any separate consultation with the contractual partner.
(8) The contractual partner must check and accept the subject of performance directly after receipt at the agreed acceptance location. Any complaints must be made within eight days; otherwise the subject of performance shall be deemed to be in order. This also applies if the client implicitly or explicitly waives any check.
(9) The contractual partner shall create the necessary conditions with the network operator, such as applying for a metering point; any different agreements in the order confirmation take precedence. Due to legal provisions (e.g. data protection) we can only provide support in this respect. Further, we shall support the contractual partner in contacts with official channels such as for approvals or funding applications.
(10) We shall advise the contractual partner in a non-binding manner with regard to receivables, electricity supply, electricity purchase etc. We shall give the best possible recommendation of which we are aware, however, we shall not assume any guarantees in this respect. There may be changes at short notice - outside our control - for receivables in particular.
H. Withdrawal from agreements
(1) The mandatory provisions of the Austrian Consumer Protection Act (KSchG) apply to legal transactions with consumers. The following applies in other cases.
(2) Withdrawal from an agreement is only permissible with cause. Cause is deemed to exist in the following cases in particular.
(3) If the contractual partner is in arrears with an agreed payment or other performance, or if we become aware after the legal effectiveness of an order or even before its performance of circumstances that appear to make the fulfilment of the agreement by the contractual partner no longer sufficiently certain, we are entitled either to insist on fulfilment of the agreement or to withdraw from the agreement upon setting an appropriate deadline.
(4) If insolvency proceedings are opened against the assets of the contractual partner or the opening of insolvency proceedings is rejected due to a lack of assets to cover costs, we will be entitled to withdraw from the agreement without setting any period of grace. If the contractual partner is responsible for the withdrawal, the contractual partner shall indemnify the damage actually incurred, however, at least lump-sum compensation of 10% of the agreed payment or purchase price.
(5) If the contractual partner withdraws from an agreement – without being entitled to do so – or the contractual partner makes a request to withdraw from an agreement we have the choice of insisting on the fulfilment of the agreement or to agree to the cancellation of the agreement. In the latter case the contractual partner is obliged to pay the damage actually incurred, however, at least lump-sum compensation of 10% of the agreed payment or purchase price.
(6) If a delay in delivery occurs due to deliberate or negligent conduct, the contractual partner is entitled, after the fruitless expiry of an appropriate period of grace set in writing, to withdraw from the agreement. The contractual partner does not have the right to withdraw from an agreement in the event of delays caused by force majeure and in the event of minor negligence with regard to merchandise that in accordance with disclosures of the contractual partner have to be specially manufactured or procured. The contractual partner is only entitled to demand compensation due to non-fulfilment or delays in the case of a delay caused by our deliberate or grossly negligent conduct.
(7) Otherwise in the event of payment arrears of the contractual partner, regardless of our other rights, we are entitled to withdraw from an agreement in full or in part after granting an appropriate period of grace. In the event of our withdrawal we shall be entitled to a compensation fee of 10% of the price of each item of merchandise in respect of which the withdrawal is made. The right is reserved to assert any further loss.
(1) Statutory provisions apply to consumer transactions. In other cases, we are entitled to exchange defective merchandise for faultless merchandise of the same quality within an appropriate deadline or to rectify the defect within an appropriate deadline. In this manner any claim to cancel the agreement or reduce the price shall lapse.
(2) A warranty claim only arises if the contractual partner reports any defects that occur in writing without delay.
(3) The period of limitations for the assertion of defects to movable items is six months and for immobile items two years from the handover date.
(4) The contractual partner must prove the merchandise is defective at the time of the handover.
(5) Such defects that arise from any set-up and assembly not effected by us, unsatisfactory equipment, use of parts beyond the given performance, negligent or incorrect handling and the use of unsuitable operating materials are not covered by the warranty. This also applies to defects that are attributable to material provided by the contractual partner. We are in particular not liable for damage that is attributable to third-party actions or to chemical influences. The warranty does not include natural wear and tear.
(6) The contractual partner does not receive any guarantee from us with regard to the properties and condition of the components. Insofar as a manufacturer assumes a guarantee for the properties and condition or for characteristics of the item purchased, the contractual partner shall, regardless of legal claims, be entitled to the rights from the guarantee at the conditions given in the guarantee declaration exclusively from the manufacturer.
(1) Our liability is restricted to intent or gross negligence, personal injury is excluded.
(2) The liability for minor negligence, the indemnification of consequential and pecuniary loss, savings that are not achieved, interest losses and to damages resulting from third-party claims against the contractual partner are excluded.
(3) Any assertion of liability, information or recourse demands shall be sent exclusively to the senior management in writing with precise disclosures of the loss, the circumstances that establish liability, including proof that the deliveries and services originate from us. Liability for damage to property resulting from a product fault in accordance with the Austrian Product Liability Act is excluded for all companies involved in manufacturing and distribution. The item purchased offers only that certainty that can be expected on the basis of licensing regulations, operating instructions, vendor regulations regarding the handling of the item supplied (operating instructions) – with regard to the stipulated checks in particular – and other information provided.
(4) Recourse claims in accordance with section 5 of the Austrian Product Liability Act are excluded unless the injured party proves that the fault caused was under our control and was a result of gross negligence at least.
(5) Our liability for all performances provided by external service providers or subcontractors within the scope of the order is excluded.
K. Data protection
The contractual partner gives their consent that the data that becomes known in the course of this business relationship will be used for automated storage, transmission and further processing for the purposes of advertising, business comparisons and creditworthiness assessments. The contractual partner is entitled to withdraw their consent to data transmission in writing at any time without any influence of this withdrawal on the existing contractual relationship.
(1) All contents of the website as well as the layout and design are protected by copyright. Any duplication or adoption of constituents of the website, in particular of texts, parts of texts, picture material or graphic presentations requires our prior consent in writing. We make every effort continuously to update and review the contents of the website. However, we cannot accept any liability for completeness, accuracy or topicality. The same applies to any websites referenced by means of hyperlinks. Every connection made to such websites is made at the user’s own risk.
(2) All plans, sketches and other technical documents, as well as samples, catalogues, brochures, illustrations and similar always remain our intellectual property and are protected by the relevant legal provisions with regard to duplication, copying, competition etc. The contractual partner shall not receive any usage or exploitation rights whatsoever.
M. Choice of law, court of jurisdiction
(1) The law of the Republic of Austria applies exclusively. The applicability of conflict of law rules and of UN sales law is explicitly excluded.
(2) The exclusive court of jurisdiction is the court with competence for our company in location and material terms (this does not apply to consumer transactions).
N. Amendments to the GTC, severability clause
(1) We reserve the right to amend these General Terms and Conditions. However, such amendments must be reported to the contractual partner within an appropriate deadline of at least two weeks after their publication.
(2) Should any provision of these GTCs be or become ineffective in full or in part, this shall not affect the legal effectiveness of the remaining provisions. An agreement shall be deemed to be made to replace any ineffective provision with a provision that comes as close as possible to it in a legally permissible manner.